Opinion The words of Fali Nariman: Excerpts of his writings

On freedom of speech (February 17, 2016)

Citizens in India are free to criticise their governments at the Centre or in the states — which they do quite frequently, and boldly and fearlessly as well; as they must, because that is what a participatory democracy is all about. It behoves the men and women of the law who advise government to impress upon their client that freedom of speech and expression is a fundamental right guaranteed under Article 19(1)(a) of the Constitution — and to remind all governments (present and future) that “sedition” had been deliberately and designedly excluded by the framers of the Constitution from Article 19(2), the exception clause to free speech, only because, as the founding fathers had said, “Sedition is not made an offence in order to minister to the wounded vanity of governments!”

On the Basic Structure of the Constitution (September 19, 2022)

Up to the year 1989, with one single political party almost consistently returning to power at every election, the judges had plumbed the depths of silence in the world’s longest Constitution, searching for some limitations on the amending power. They found none; and they said so, emphatically, in 1951 in a Bench decision of five judges (Sankari Prasad vs Union of India). Fourteen years later — a different Bench of five judges — said no again (Sajjan Singh vs State of Rajasthan), but this time with some hesitancy. Ultimately, in 1973 in Kesavananda Bharati, a larger Bench of 13 judges sat for several months, listening to arguments on what was described as “an issue of grave moment, not only to the future of this country but to the future of democracy itself!” … by a 7:6 majority, it held that although under Article 368 Parliament’s power to amend the Constitution was plenary, extending to each and every article of the Constitution, including the articles enumerated in the Fundamental Rights Chapter, no amendment was permissible if it altered “the basic structure or framework of the Constitution”.

In Indira Gandhi vs Raj Narain (1975), a Constitution Bench of the highest court held that free and fair elections were a fundamental part of the Constitution, so fundamental as to be beyond the reach of the amending power, all the five judges on the Bench having been a part of the Bench of 13 judges in Kesavananda Bharati. It was this decision (in Indira Gandhi vs Raj Narain, 1975) that helped to cement the “basic structure theory”.

On importance of coalition governments (August 17, 2016)

After another somewhat indifferent decade of Congress rule, there emerged a prolonged period of coalition governments for the next 25 years — 1989 to May 2014 — during which no single political party could, on its own, form a government at the Centre.

It was during this period when political parties were reaching out for alliances — in order to form a stable government — that India witnessed a complete change of attitude in their leaders. Stepping down from the high ground, they became much less fractious and much more friendly. They began practising the spirit of fraternity — one of the prime purposes for which the Constitution was framed, as stated upfront in its Preamble… And when governments do good things, people do the same. When those in the government speak temperately, and without excitement, anger or malice, the people do likewise.

On judicial accountability (November 12, 2022)

Empowering itself with the trappings of modern technology, India’s Supreme Court has been striving to perform its arduous task. But what of the future? First, and foremost, the judiciary as an institution needs to preserve its independence, and to do this it must strive to maintain the confidence of the public in the established courts. The independence of judges is best safeguarded by the judges themselves — through institutions and organisations that the law empowers them to set up… It is in the high courts that there are now left the largest number of roadblocks and delays; in their administrative functioning the high courts are answerable to no one but themselves… It is time that the Supreme Court be entrusted with direct responsibility for the functioning of the high courts: Only then can the highest court be an effective apex court, only then can the Supreme Court be made answerable, as it should be, for judicial governance for the entire country.

On Justice Muralidhar not being elevated to Supreme Court (written with Madan B Lokur and Sriram Panchu, August 16, 2023)

Along with Justice A P Shah, he authored the path-breaking Naz Foundation judgment that decriminalised consensual homosexuality by reading down Section 377 of the IPC. He convicted Congress leader Sajjan Kumar for his role in the 1984 anti-Sikh riots. He sentenced 16 policemen to life imprisonment for the targeted killing of 38 Muslims in Hashimpura. He granted bail to Gautam Navlakha, one of the activists arrested in the Bhima Koregaon case. During the Delhi riots in 2020, he held a late night sitting to mandate ambulance services to victims and rehabilitation measures. His Bench slammed the Solicitor General and the police for not registering cases against BJP leaders for provocative speeches; this obviously led to his hurried transfer to Punjab and Haryana HC by an executive midnight order…

The judge retired at the age of 62; he was in his stride, and had so much more to do and give… The judiciary has lost a treasured asset, a diamond which should have sparkled on the crown. And hence questions, hard questions, must be asked of the collegium of the Supreme Court. Why was this judge not taken to the Supreme Court when he is so supremely qualified and has performed so brilliantly? With such merit on display, along with matchless integrity and probity, on what grounds was he denied his rightful place?

A letter on camaraderie in Parliament

This refers to the article, ‘Laughter in the House’ (IE, December 8, 2023), by Derek O’Brien. My friend Piloo Mody believed that if ever there could be a good government, he was the man to provide it — “Look at my initials”, he would say, with childish simplicity: “PM”. But the nearest he came to the High Office was when he once wrote a note in Parliament to Mrs Indira Gandhi, his adversary and political opponent.  “Dear IG”, it began and ended with the initials “PM”. Mrs Gandhi responded in the same vein “Dear PM”, she wrote back and signed “IG”! Those were indeed gracious days: people in politics, though opposing one another, were able to laugh at and with each other.