Fali Sam Nariman passed away on February 21. Senior Advocate, doyen of the Indian bar and legal luminary, his life is an example and an inspiration for all those who cherish the values of the Republic.
Born in Rangoon in 1929, in what was then still British India, Nariman moved to India with his parents in February 1942 in the wake of the Japanese invasion of Burma. As he described in his autobiography Before Memory Fades (2010), the Nariman family was forced to leave behind most of their personal belongings. They made the 21-day trek across the Indo-Burmese border, carrying, for the most part, boxes of office records. He came from a generation who knew the cost of war personally.
After he received a second class in his Bachelor of Arts examinations, his father was keen on him sitting for the Indian Civil Service (ICS) examination, but young Fali knew his father could ill-afford the fees. He chose, instead, to study the law.
Though Nariman described law as the “last refuge” of a “second-class arts student”, that second-class degree was the Indian bar’s good fortune. He began his legal career in November 1950. He joined the chambers of Sir Jamshedji Behramji Kanga, which produced such luminaries as Harilal Kania, the first Chief Justice of India, and H M Seervai, whose Constitutional Law of India (1967) is one of the definitive accounts of the Indian Constitution.
Nariman’s career was marked by his integrity. He was Additional Solicitor General of India from May 1972 to June 1975, resigning from that post when the Emergency was declared on June 26, 1975. He never accepted any constitutional office thereafter. In a career spanning more than 70 years, the cases he argued shaped the courts as an institution of constitutional governance.
One example is the Supreme Court Advocates-on-Record Association (SCAORA) case of 1993 (the Second Judges case) where the Supreme Court endorsed the collegium system. Before the Court, Nariman had argued that “consultation” with the President meant more than merely seeking advice. The Court upheld the collegium system, finding that the Chief Justice would also have to take into account the opinions of his seniormost colleagues.
In later years, Nariman criticised the collegium system, arguing that many fine lawyers had been overlooked for consideration for judgeship. But he appeared again in the 2016 SCAORA case, arguing that the National Judicial Appointments Commission would impinge on the independence of the judiciary. The Constitution’s mandate to uphold the independence of the judiciary, he argued, was necessary to inspire the faith of citizens in impartial justice and to uphold constitutional values.
I was one of the lawyers who briefed him, in 2012, in Suresh Kumar Koushal vs Naz Foundation, where the Supreme Court upheld the sodomy law, under Section 377 of the Indian Penal Code, 1860. His arguments were a masterclass in the fundamental principles of criminal law. He laid bare the structure of the Penal Code to argue that there were no grounds to make sexual acts between consenting adults a criminal offence. He urged the Bench that the law had to move with the times.
Despite reaching the heights of the legal profession, Nariman’s trademarks remained his humility, his unrelenting insistence on following his conscience, and speaking his mind. He was also not afraid to admit he had made a mistake. In 1985, he defended the Union Carbide Company, helping arrive at the settlement agreement in which Union Carbide paid $470 million as compensation to victims after the gas leak. In a television interview, he said that compensation to “hard core” victims had proved to be inadequate and unjust. If he had to live his life over again, he said, with the foreknowledge of what came later, he would not have accepted the civil liability case.
Nariman’s advice to young lawyers are words we should all pay heed to. Keep your temper in court, he counselled, because losing it will only do a disservice to your client. Be scrupulously correct in quoting the facts and the law, so judges trust you. Do not speak in the media about cases you have argued — as a lawyer, you have that luxury, but judges cannot turn to the press to defend themselves.
Are people born with these human traits, or are they wrought by their times? Fali Sam Nariman was one of the last of a generation that saw the birth of this country, and whose values and ideals were shaped by its founding and which, in turn, shaped this fledgling nation. They crossed borders that had not existed at their birth, saw the pain of Partition and the joy and hard work of creating a new country. They saw constitutional values imperilled during the Emergency. The country changed beyond measure before their eyes.
As Nariman himself said, writing a constitution is easy, but working a constitution is a grave challenge. His passing has been mourned by many, and our thoughts are with his family. What remains for us to do, as citizens, is to reflect on the lessons we can learn from his life and perhaps try to live by and protect the values that he stood for.
The writer practises law at the Supreme Court of India
Fali S Nariman, constitutional jurist and senior advocate to the Supreme Court, at his residence during an interview with The Indian Express in New Delhi on 22 April 2023. (Express photo by Chitral Khambhati) 
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