Fali Nariman: An old-school traditionalist who dreamed of dying ‘in a secular India’

With his death, the curtain is now drawn on a generation of legal greats.

WrittenBy:Sanjoy Ghose
Fali S Nariman, 1929-2024.

I have never had the good fortune of briefing the great Fali Sam Nariman in any case. For that matter, I have also not been blessed to attend the many social gatherings where the Narimans – Fali and his loving late wife Bapsi – have been either gracious hosts or fêted guests. Hence, I cannot claim to have any personal insight into the towering personality of perhaps the tallest lawyer who, till early morning of February 21, 2024, dominated the Bar like a mighty colossus.

However, for whatever it’s worth, Fali Nariman is indelibly connected with my most embarrassing day in court. 

I was a few years into my independent practice when a lawyer from Gujarat who used to regularly send me work literally compelled me to appear for a person convicted of raping a woman who was deaf, non-verbal and had intellectual disabilities. The case was before Chief Justice Balakrishnan’s court. I argued halfheartedly and almost agreed that my client was truly a lowlife. 

Yet nonchalantly giving the impression that I had to do my duty, I said, “I would fail in my duty if I didn’t point out that the girl’s father had extorted other men in the village by making the same accusations.”  

To my surprise, the court halved the sentence. To my even greater surprise, Fali Nariman, who unknown to me, was sitting behind me, patted me, and said, “Well argued, my chap.” The great man must have assumed that my “nonchalance and I don’t care if you dismiss the case” approach was some great strategy. I was dying to confess to him that it indeed was not and I actually had no heart in the matter. However, it is not every day that a young lawyer is complimented by the great Fali Nariman. He was surely “impressed” as we ran into each other in the canteen and he again complimented me!

That Fali did not find it wrong to defend a convicted rapist of disabled victim only goes on to underscore his belief that every litigant deserves counsel. It is not for the lawyer to judge his clients – that job is left entirely to the judges. He had passionately defended the Union Carbide Corporation which had perpetrated one of the world’s greatest industrial disasters in Bhopal with the MIC gas leak from its plant. Many have critiqued him for accepting the brief and helping the client in getting away scot-free by paying a paltry settlement. In later life, Nariman indicated that he regretted the role he played in that case.

Nariman was the Additional Solicitor General when Indira Gandhi imposed the Emergency. In his writings and interviews, he has talked about those dark times. He demonstrated his commitment to the constitution – and he began his journey at the same time as it did, joining the Bombay Bar in 1950 – by tendering his resignation rather than defending such a government in court as its law officer. 

Fali has demonstrated his spine on more than just this occasion. When he came to know about the Gujarat government’s inaction to protect Christians who were attacked in Dang district, he refused to continue to appear for the state in the Narmada Dam case.

Nariman’s impact in the evolution of the law relating to judicial independence is well documented. He was one of the lawyers in the SP Gupta case (where the power of the executive to appoint and transfer judges was considered), which forms part of a series known in the legal world as the “Judges Cases”. It culminated in the last one which put paid to the National Judicial Accountability Commission. Fali argued passionately, batting for the collegium system and against an executive-dominated NJAC.

A passionate champion of judicial independence and a samurai against external corrosion by executive overreach, Nariman was surprisingly silent when the nation witnessed its internal corrosion and slide in the last decade. In fact, during the Master of the Roster controversy that hit Chief Justice Dipak Mishra’s tenure and the sexual harassment scandal that threatened to singe his successor Chief Justice Gogoi’s legacy, Nariman remained a passionate defender of the status quo-ist establishment. In fact, given his stature, even a slightest hint of dissatisfaction of the state of affairs would have galvanised the Bar and chastised the Bench. 

Sadly, the author of God Save the Supreme Court failed to do exactly that. While Nariman conceded that judges of the Supreme Court justices lacked collegiality, the conservative in him could not stomach four justices marching out of their courtrooms and holding a press conference. Nariman therefore remained forever the old-school traditionalist. The extent of judicial activism that perhaps he could stomach would have been the court in the second judges case (officially the Supreme Court Advocates of Record Association case), interpreting “consultation” by the executive of the judiciary in the matter of judicial appointments to mean “binding” consultation.  

While Fali lent his voice for judicial control over appointments, rarely did he disturb the apple cart. One cannot ignore the fact that, after all, he was indeed an “insider” with an enviable practice, matched in his later days by his son Rohington Nariman who ultimately opted for the judicial robe and was part of the same Supreme Court where Fali practised. Rarely was his voice heard in strong proposition for a more inclusive or representative judiciary. Perhaps the conservative in him believed that merit and merit alone should be the basis of all judicial appointments.

As his memory faded, to borrow the title of yet another of his works, Fali walked into the sunset finally voicing that “there was something rotten in the state of Denmark”. He was, for instance, deeply disturbed at the absence of any dissent in the recent Supreme Court judgement on Article 370.

Nariman the senior advocate, formidable as he was in court, was just a regular ego-less lawyer in the court corridor. His interactions with Guptaji were legendary. Gupta was a briefless lawyer who came daily to the Supreme Court and would sit at the lawyers’ library, chat with colleagues at the Bar, and go home in the evening without earning a farthing. I have it from eyewitnesses that Gupta would accost Fali in the court corridor with “Aur Narimanji, how is your practice?” Fali, in his trademark heavy and distinctive voice, would laugh and say, “Getting along Gupta, getting along.” 

In fact, Fali was one of the many members of the Bar who would regularly contribute to get briefless Gupta’s household running. There was no irritation or arrogance in Fali’s interactions. He treated Gupta as his colleague and gave him the respect which few at the Bar would.

With Fali Nariman, the curtains are almost drawn on that generation of legal greats who were also passionate defenders of the constitution and the values it represents. Nariman’s view on India’s religious plurality is well-known. He used the legislative pulpit of the Rajya Sabha to come down heavily on communally divisive politics. He had openly shared his dream of dying in an India that was secular. 

Fali dedicated his latest book, You Must Know Your Constitution, to RK Laxman’s Common Man with the words “To the Little Indian in whom rests the future of the Nation”.

Today, the giant amongst us may be gone, but let us not give up his hope in and for the “little” man.

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