There were a number of fingerprints on the historic ruling on Friday when the Supreme Court quashed the National Judicial Appointments Commission (NJAC). But the hand that stood out was that of noted jurist Fali S Nariman.
This was the third major ruling since 1993 that has gone in favour of the 86-year-old in his fight to preserve the independence of the judiciary.
Nariman had declared last August that he would challenge the NJAC, saying that its provisions hit at the root of judicial independence and may be struck down by the Supreme Court.
Soon enough, he settled a petition to be filed by the Supreme Court Advocates on Record Association (SCoRA), which challenged the validity of the constitutional amendment and the NJAC Act. But in August 2014, the top court said this petition was premature and that the petitioner can approach the court at an appropriate stage.
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Nariman swung into action again after the constitutional amendment received Presidential assent on December 31, 2014, with the SCoRA filing a fresh petition on the constitutionality of the NJAC.
On April 15, the matter came up for hearing before a five-judge Constitution Bench with Nariman spearheading the battle on behalf of the ScoRA.
For the next three months, he did not appear in any other major case. On each day of the hearing, Nariman and his associate advocate Subhash Sharma would sit patiently in the court room, hearing and jotting down every significant argument.
Equally significant was the contribution of Sharma, who was praised by senior advocate K Parasaran. “Give me Sharma and I can be Nariman too…I can also make all these arguments,” Parasaran had said.
When it came to the NJAC case, Nariman, who would usually go to bed early, was found to be awake often till around 1 am, preparing for the hearing. In court, he argued for days, while assisting other lawyers.
Incidentally, Nariman’s book “Before memory fades: An autobiography” was referred to often during the NJAC hearing when lawyers sought to assert that he was also against the existing Collegium system.
But while accepting in a note that he has criticised the Collegium system for being opaque, Nariman said he could not support NJAC since it would “impede the independence of the judiciary”.
The veteran also managed to maintain his sense of humour throughout. Once, when it was pointed out to him that Attorney General Mukul Rohatgi and Solicitor General Ranjit Kumar never used his book to criticise him, Nariman said: “They are my friends…they won’t do it.”
Nariman has led the arguments for the SCoRA in the two previous cases on this subject, popularly called as Second Judges case and Third Judges case.
The Second Judges case had overruled the judgment in the S P Gupta case in 1981, also called the First Judges Case, which declared that the primacy of the Chief Justice of India’s recommendation to the President can be refused for “cogent reasons”.
In 1993, arguing for the ScoRA, Nariman convinced the nine-judge bench to overturn the First Judges case. It was held that “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.” The Collegium system of appointing judges was ushered in by this judgment.
But in 1998, President K R Narayanan issued a presidential reference to the Supreme Court, seeking a clarification on what the term “consultation” would mean vis-a-vis appointment of judges.
As this was seen as an attempt by the executive to have the First Judges case reviewed under the garb of a clarification, Nariman stepped in again and argued for ScoRA.
In its new judgment, the nine-judge bench strongly reinforced the concept of the “primacy” of the judiciary and the CJI in making appointments. In its reply to the President, the Supreme Court also laid down nine guidelines that became the guiding principles for the working of the Collegium.
Nariman is far from done, though. On November 3, when the Supreme Court examines the changes needed in the Collegium system, Nariman will lead from the front — yet again.
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