The legal career of Fali Sam Nariman began in 1950, along with the coming into force of the Indian Constitution. In the 74 years for which Nariman and the Indian Constitution co-existed, they were inseparable. From I C Golaknath in 1967, where the Supreme Court (SC) held that fundamental rights are beyond the amending powers of the Parliament, to the Supreme Court Advocates-On-Record vs Union Of India case in 2015, where the SC struck down the 99th constitutional amendment to defend the independence of the judiciary, Nariman argued and succeeded in cases that have shaped Indian constitutional law. Through his long legal career, he ensured that his professional success did not come at the cost of his fundamental principles and he was that rare personality who straddled the world of extraordinary professional success while being a moral guide to governments, judiciary and the legal fraternity.
While much will be written about the cases he argued, the element of his life which will possibly be well remembered in posterity is his extraordinary engagement as a public intellectual in the last 20 years of his life, when he slowly reduced his court work, simultaneously increasing his public writings — particularly in respect to the Indian Constitution and the legal system. In the years between 2006 and until his passing today, he authored a total of six books, most of which have been bestsellers. His most recent book You Must Know Your Constitution was published last year. This was a tour de force on the political and cultural underpinnings of the Indian Constitution, presented in such a lucid style that even a layperson could absorb the complexities of the Indian Constitution. His 2010 autobiography Before Memory Fades was an exceptional account of his personal and professional life that has inspired lawyers and non-lawyers alike. It is not unusual for lawyers to get applications from young law students seeking internships, detailing how one of Nariman’s books inspired them to get into the field and how they aspire to be lawyers like him.
In the last many years, he was one of those rare public intellectuals who defended not only the Constitution but also, more specifically, the principle of secularism enshrined in it. In Before Memory Fades, he described the worrisome trend of loss of tolerance within Indian society. His public statements on the 2002 riots in Gujarat or on the appointment of a religious leader as the chief minister of Uttar Pradesh were a reflection of his concern that a society where religion, politics and governance are conflated, is a society on a downward spiral.
Nariman never shied away from publicly criticising or rebuking the SC, when he was convinced that the Court was lacking in its expected constitutional role. Even though he helped shape the creation and the functioning of the collegium system by arguing in favour of it as a protector of judicial independence, he publicly criticised its functioning quite often. Most recently in September 2023, he questioned the collegium’s decision not to elevate S Muralidhar to the SC.
He also called out the SC’s recent decision on Article 370 as “politically acceptable but constitutionally incorrect”, and lamented the fact that out of the five judges on the Bench, not one dissented. According to him, dissent in contested matters is an indication to the public that even though one view prevails for the day, the Court itself is in good health as multitudes of views exist and are not able to overpower each other.
Crucially, his moral compass was not just meant for others. One of his errors of professional judgment in his 74-year legal career was defending the Union Carbide before the Indian SC in the aftermath of the Bhopal gas tragedy. Later in his life, he introspected and had the sagacity to accept that this was an error and that he was wrong to treat the Bhopal tragedy as just another professional brief. Similarly, in 1975, upon imposition of the Emergency, he resigned from the post of Additional Solicitor General in protest. In 1998, he also returned the brief of the Gujarat Government in the Narmada rehabilitation program, as a protest against the attack on the Christian community within the state.
Never a man who hankered for any post, in life as in his death, he will not be remembered for any positions that he held but for the personality that he was. Be it the government of Indira Gandhi or Narendra Modi, he had an unflinching ability to speak truth to power. It is that ability to defend the Constitution, irrespective of the political colour of the government of the day that we need the most now to sustain the constitutional republic that he so lovingly helped curate.
The writer is a counsel practising in the Supreme Court of India
