Opinion: Fali S. Nariman, Whose Memories Won't Fade

In The Story of Philosophy, author Will Durant, while commenting on philosopher Schopenhauer and his thoughts, writes, "By Nirvana, the individual achieves the peace of will-lessness, and finds salvation; but after the individual? Life laughs at the death of the individual; it will survive him in his offspring, or in the offspring of others; even if his little stream of life runs dry, there are a thousand other streams that grow broader and deeper with every generation." The memories of Fali S. Nariman won't fade. They'll continue to inspire lawyers, judges and legal academics across the world, and motivate generations, both present and the future. Nariman was more than just a jurist. He was universal, quite like his constitutionalism.

Take Golak Nath (1967), Kesavananda Bharati (1973) or the relatively recent National Judicial Appointments Commission (NJAC) judgment (2015). A common thread of counter-majoritarianism is visible in these seminal verdicts, which is the hallmark of judicial review in any functioning democracy. Nariman contributed professionally and intellectually to these pronouncements and many others. His opposition to the National Emergency singularly had a powerful impact on Indira Gandhi's regime. His recusal from the Gujarat state's brief in the Narmada project case as a mark of protest about the government's failure to protect the marginalised underlined the same point.

A Life Dedicated To Learning

It was a pleasant surprise when Nariman asked me to convey his encomium to my daughter Thulasi, who at that time had written a column in a newspaper. Nariman did not see her. But he read her very much, even though she belonged to a much younger generation. He encouraged youngsters both inside and outside the court. Even when he turned an octogenarian, he listened to people, events and kept track of almost all socio-political developments. His observatory skills were unparalleled. He was a great orator, a prolific writer, and a voracious reader. Like a school student, he would often be found in the Supreme Court library No. II, underscoring passages in a case file or taking down points from a masterpiece.

Kaleeswaram Raj with Fali S. Nariman at Supreme Court Library No.II, in November 2017
Photo Credit: Kaleeswaram Raj

Nariman, a hardcore secularist and a socialist, was a public intellectual who challenged power, whenever a situation so warranted. He believed in the core values of the Constitution and stood for them throughout his life. He assimilated the preambular principles and lived up to them. He once wrote- "Our Constitution cannot survive long if we only pay lip service to the Directive Principles of State policy. We must implement them in earnest. The neglect of the poor and needy in our country poses the greatest single serious threat to our survival as a nation..."(The State of the Nation, 2013). Nariman was a close friend of Justice Krishna Iyer. It was an association that shared certain ideological planks as well.

The Idea Of Equality

In his autobiography, Before Memory Fades, Nariman wrote, "the legal education system appears to have lost its ethical content" and appealed "to re-discover and reaffirm the profession's 'moral foundation'". Many do not know that Nariman was against the prevailing system of senior designation as he thought it went against the very idea of equality. He said Section 16(2) of the Advocates Act, which envisages the designation of a chosen few as seniors, introduced a "caste system" and violated Article 14 of the Constitution, which promises equality before the law. It is ironic that it needed the country's greatest jurist to assert a truth that many in the fraternity are reluctant to voice.

In the courtroom, Nariman was mild in manners and yet strong in submissions. It is the content of the contentions that mattered, and, in his case, contentions often became the conclusions. He never raised his voice in the courtroom. Yet, his voice would captivate people. 

Freedom As A Cause

Law, by its very nature, is an inter-disciplinary subject, which lawyers seldom understand. Nariman knew that very well and demonstrated the utility of being encyclopedic. A lawyer needs to develop a personality of her own. One does not acquire it overnight. It is the world around that becomes the perpetual source of knowledge. Nariman's erudition underlined the famous words of Justice Holmes Jr., that the life of the law is not logic, but experience. It is so with the life of a lawyer as well, as Nariman splendidly illustrated.

We lose Fali S. Nariman at a time when the rule of law and constitutional fraternity face immense threats. He remains eternally relevant to the causes of the Republic. "The only way to deal with an unfree world is to become so absolutely free that your very existence is an act of rebellion," said Albert Camus. Nariman showed it. And he also showed the way.

(Kaleeswaram Raj is a lawyer at the Supreme Court of India)

Disclaimer: These are the personal opinions of the author.