Fali S Nariman (1929-2024)

Fearless lawyer and an outspoken advocate for secularism and civil liberties, Fali Nariman, who was awarded Padma Bhushan and Padma Vibhushan during his illustrious career, passed away in the wee hours of February 21, at the age of 95.

His principled commitment to democracy and the rule of law reflected the sentiments of the founding fathers of the Constitution—liberty, equality and fraternity—all through the course of his glittering legal career. He came into prominence nationwide with his tendering resignation as the Additional Solicitor General of India—one of the senior-most law officers of the Union government who was supposed to defend its actions in court—in June 1975 as a protest against the emergency proclamation order issued by the then Indira Gandhi government. This was an act of great courage, for at that time government was all out for imprisoning people who did not fall in line with its thinking.

Intriguingly, recalling the failure of the constitutional functionaries, including Supreme Court judges in protecting the Constitution and fundamental rights, he commented in his autobiography, Before Memory Fades, that “It was judicial pusillanimity at its worst”.

Appreciating the fact that a free press is highly critical for the survival of democracy, he appeared for the Indian Express when the government in the heydays of emergency (1975-77) threatened to forfeit the lease of its headquarters in Delhi for a minor violation of municipal bylaws— indeed threatened to demolish the building. He could convince the Supreme Court with his arguments that the threat of forfeiting the lease was a mere pretext to silence the press from airing its critical coverage of the government’s wrongdoings. His greatness as an advocate lies in his craft of not only arguing his case from the high pedestal of his mastery over constitutional theory but also in drawing the Court’s attention to the nitty gritty of Municipal laws that have a bearing on the case and thus could succeed in getting the notice quashed. 

In his long legal journey, he was a party to landmark cases such as Sankari Prasad Singh Deo, Kesavananda Bharati, IC Golaknath, Minerva Mills, TMA Pai in which the Supreme Court defined constitutional norms and the very course of jurisprudence.

There is however an exception to his illustrious legal journey: He appeared in the Bhopal gas tragedy case on behalf of Union Carbide for which he was severely attacked. Of course, he countered it with an argument that such an approach puts a tremendous burden of “pre-judging guilt” on lawyers.

He was a distinguished constitutional law advocate. This lawyer, aged 86 years, argued the case, National Judicial Appointments Commission (NJAC), standing in the Court right from 10.30 am to 1 pm and again from 2 pm to 4 pm every day for a week driving home the foremost need for maintaining judicial independency in his penetrating voice—“vesting the power of appointing judges on the executive is inappropriate and arbitrary” —paved the way for the establishment of the Supreme Court Collegium.

His concern for secularism defined his legal journey. He was once representing the Gujarat government on the Narmada rehabilitation case. While the PIL filed on behalf of tribals was pending in court, Nariman, learning about the burning of churches in many parts of Gujarat, returned the brief in protest in December 1998 saying, “I would not appear for the State of Gujarat in this or any other matter”.

In a profession where pettiness, jealousy and excessive rivalry are ruling the roost making the profession of lawyers less ‘noble’, Fali Nariman’s qualities of clean, open and magnanimous large-heartedness stand out as a beacon of hope, observed Abhishek Singhvi, the senior lawyer and member, Rajya Sabha. 

Twice he was offered the post of attorney general by two Prime Ministers—once by Deve Gowda in 1996 and Atal Bihari Vajpayee in 1998—and both times he refused it politely. Recalling it later in his autobiography, he wrote that “apart from not wanting to be a part of BJP-led government, the trauma of resigning in protest as a law officer for the second time dissuaded me from saying yes”.

He signed off his autobiography stating: “My greatest regret in a long, happy, interesting life is the intolerance that has crept into our society. For centuries, Hinduism had been the most tolerant of all religions …  This great orchestra of different languages and praying of different Gods—that we profoundly call India— is now seen and heard playing out of tune … I have lived and flourished in a secular India. In the fullness of time if God wills, I would like to die in a secular India”.

In the death of Fali S Nariman, the legal fraternity lost its foremost voice of conscience.