Fali Nariman (95), a doyen of the bar, passed away on February 21, a huge loss to the legal fraternity. He was a jurist par excellence; a champion of human rights and a free press and left an indelible imprint on the legal profession.
This writer has closely interacted with him for two decades in a number of cases.
Fali Sam Nariman was born on Thursday, January 10, 1929 at Rangoon in Burma (now Myanmar) as the only child of Sam and Banoo Nariman. They were in Burma as his father was the Manager of the New India Assurance Co. Ltd branch which he had established there.
During World War II, the family shifted to Mumbai, where he had his education.
Fali Nariman started the general practice of law in 1950 as a trainee in a leading solicitor’s firm of Bombay- Payne & Co. He then joined the chamber of Sir Jamshedji Kanga where his immediate senior was Rustom Kolah, to begin with.
He was then attached to Khursedji Bhabha (also in Kanga’s chamber).
Soon Nariman built up a large and lucrative practice, particularly in commercial law and civil law. Indeed, he dominated the commercial court.
He assisted both Asoke Sen and Nani Palkhivala in Golak Nath case.
Nariman was offered a High Court judgeship in 1966 though he was only 37-38 years old and as required in those days it had the express approval of the Chief Justice of India. He declined it for personal reasons.
His chance appearance in an election case for H.R. Gokhale, later Union Law Minister, facilitated his first independent appearance in the Supreme Court and he shifted his practice to the Supreme Court.
He was designated as Senior Advocate in 1971. In 1972 Nariman was appointed Additional Solicitor General (ASG) of India.
Thereafter for over half a century he practiced continuously in the Supreme Court. As a champion of human rights, he resigned as the ASG when Emergency was imposed in June 1975.
Over the years, he was Vice-President and President of LAWASIA.
Nariman was honoured with the Padma Vibhushan in 2007 and Padma Bhushan in 1991. He was a nominated to the Rajya Sabha during 1999-2005. His son Rohinton Nariman served a Judge of Supreme Court of India between July 2014 and August 2021.
Let us now look at some of the important cases in which he appeared.
The Second Judges case: In 1981 a five-judge constitution bench of the Supreme Court gave the central government the final say, in matters regarding judicial appointments and transfers by allowing the President to refuse recommendations made by the Chief Justice of India (CJI).
The court held that the requirement under Article 124 of the Constitution, stating that the CJI must be “consulted”, means that there must be an exchange of views, and there is no necessity for “concurrence” between the CJI and the President.
The Supreme Court Advocates on Record challenged this decision. In 1993, the nine-judge bench agreed with Nariman’s arguments and paved the way for appointment of Judges of High Courts and Supreme Court by a collegium of senior judges.
Third Judges case: The Union Government dissatisfied with the ruling giving primacy of appointments to the collegium sought Presidential reference through the then President of India K R Narayanan under Article 143 of the Constitution on Supreme court’s opinion on questions of law that may have public importance.
Nariman made submissions to assist the court in this case. The court, answering the reference in 1998, clarified that the CJI must consult other judges of the Supreme Court before making any recommendations for judicial appointments.
Further, it expanded the size of the Supreme Court Collegium to five senior-most judges from the existing three.
Soon after the Narendra Modi government came to power, it brought the National Judicial Appointments Commission consisting of six members — the CJI, two senior Supreme Court Judges, Union Law Minister and two eminent persons who would be appointed by a committee comprising the CJI, Prime Minister and Leader of Opposition.
A five-judge bench in 2015 struck down the NJAC law as unconstitutional and restored the collegium system of appointments.
Fali Nariman also appeared in the fame Golak Nath case in which the court held that fundamental rights cannot be curtailed by the government.
Two brothers in Punjab challenged the Constitution (Seventeenth) Amendment Act, 1964 as it amended Article 31A of the constitution. This Article deals with the acquisition of estates and can be found in the fundamental rights chapter of the constitution.
Fali Nariman appeared on behalf of the intervenors in this case who supported the petitioners. They argued that Parliament’s power to amend the constitution under Article 368 did not include Articles contained in Part III of the Constitution dealing with fundamental rights.
A majority of six judges from the eleven-judge bench held that Parliament cannot make a law which infringe fundamental rights.
In the 1984, the Bhopal gas tragedy in which tons of toxic chemicals leaked from a pesticide plant owned by Union Carbide India Limited, resulting in thousands of deaths and environmental damage in the following years, he appeared on behalf of Union Carbide and got compensation to the victims of tragedy to the tune of 470 million US dollars, as against 426 million dollars offered by the company.
He appeared for former Tamil Nadu Chief Minister Jayalalitha in the disproportionate assets case in the Supreme court and got her bail. She was convicted and sentenced to four years imprisonment by the trial court in Karnataka.
Though the top court was reluctant to grant bail, he convinced the top court that appeal in the Karnataka High Court might be expedited and that she would cooperate in speedy disposal of the appeal. As a result even as bail was granted to her, the apex court monitored the progress of the appeal in the High Court.
He got bail for the late Kanchi Sankaracharya Sri Jeyandra Saraswathi in a murder case.
I can recall this case as prior to the date of hearing, after the briefing from a group of lawyers from Chennai and Supreme Court was over, Nariman called me and said: “You are a neutral person. Tell me about this case.” I was astonished by Nariman’s humility and seeking clarity before taking up a sensitive case.
After I explained to him the background in filing the criminal case, he was convinced and told me: “Now I am clear. I will take up this case. Don’t tell this to your office as you will be mistaken.” His clinching arguments got bail for the Sankaracharya and later acquittal as well in the trial.
Nariman was the leading lawyer for Karnataka in the Cauvery water dispute in the Supreme Court and Cauvery Water Disputes Tribunal. His lucid arguments convinced the Supreme Court to pass a balanced order in deciding the appeal against the Tribunal award.
