Before The Memory Fades, by Fali S. Nariman

Anonymous

Editor’s note:

This paper is an analysis/review of the celebrated autobiography of Fali S. Nariman, his early career beginnings, professional struggles, personal inhibitions and moral qualms that each lawyer faces at some point in time. The paper also endeavours to study his sharp criticism of not only Indira Gandhi but also the entire justice system. It offers a chapter-by-chapter analysis, focusing on the landmark judgments Nariman was involved in, and his opinions regarding the same. His book, a must read for all persons associated with the legal profession, touches upon the side of law nobody talks about – the conflict, the dissents and the repercussions of going against the state.

Introduction

In the early part of the book, Nariman recalls the fond memories of the day when Chief Justice Chagla asked him to try and reproduce the facts of a case in the absence of his senior Nani Palkiwala, and gave the decision in his favour. The biography tells us about the rebellious and the professional Nariman. Nariman many a time during his professional life stood for causes, he did not personally believe in. There are various cases in his illustrious career where he represented the side, he might not have necessarily himself preferred to have won. In the second part, this paper will talk about one of those. Further, in the third part the paper will seek to show that Nariman has always done what he thought was morally right, even if that would cause him personal discomfort. The paper will endeavour to study his sharp criticism of not only Indira Gandhi but also the entire justice system.

Nariman and his Ideas of Professionalism

In Chapter IV, Lawyers and the Legal Profession, Nariman quote Clarence Darrow, who says that the law provides that every defendant regardless of the charges is entitled to a lawyer to defend him, especially when the entire world is against him. This clearly shows Nariman’s understanding of being a lawyer, and a professional one at that. This is in many ways similar to Ram Jethmalani’s idea of being a lawyer. Ram Jethmalani has many times stated defending his decision to defend Manu Sharma[1] that it is imperative that there is a lawyer to defend every accused, be it someone accused of smuggling or terrorism. [2] He, also once told Karan Thapar, who was interviewing him, that if he did not defend Manu Sharma, one day Thapar would be behind bars and no one would turn up to defend him. [3] Similarly, Nariman believes that it is his duty to defend any side, in any case, which approaches him, regardless of his own personal beliefs, the seriousness of the charges or the probability of his prospective client of winning or losing the case.

In Chapter XVI, A Case I Won, But Which I Would Prefer to Have Lost, Nariman talks about the Second Judges Case, wherein he represented the petitioner, Supreme Court Advocate on Record Association. He was, in a way, trying to get the precedent set by the Apex Court in the First Judges Case over ruled. In the First Judges Case, the Supreme Court of India had held that the opinion of judges, including but not limited to the Chief Justice of India, was to be sought by the Government of India, before the appointment of judges to the higher judiciary, but it would still not in any way be binding. This translated into the Government of the day having a free hand at not only the judges, which it consulted for such an opinion, but also finally deciding on as to whether it wanted to take cognizance of the opinion thus received. This, then, lead to a serious manipulation by the Government in terms of the judges which were appointed. For instance, in 1985, P.N. Bhagwati, the then Chief Justice of India and the judge who pronounced the judgment on behalf of the majority in the First Judges Case, was shown the stick of precedent (his own judgment) while turning down his recommendations regarding the appointment of judges.

Mindful of the fact that even if he were to win the Second Judges Case, the outcome might not necessarily be the one he sought to achieve (transparency), he fought the case. He won the case for his clients. The Court was reluctant in giving the Chief Justice of India the ultimate authority under the veil of Judiciary’s independence after the experience with Chief Justice A.N. Ray. In 1977, Justice Ray made transfers of High Court judges not based on the extra workload certain courts had, but  because those judges had given judgments which were contrary to the very interests to the Government of the day. This rule was of course before the ruling of the First Judges Case, and was prone to favouritism creeping into the appointment of judges as the ultimate authority was to rest in one person, i.e., the Chief Justice of India.

So, as an answer to the problem, the Apex Court, in its wisdom, decided to bestow the prerogative on not one single individual, but a collegiate of three senior most judges of the Apex Court. The probability of these three being manipulated, however, doesn’t seem to be much lower than that of the Chief Justice of India alone. Hence, wherein Nariman did know that his pursuit should be to devise a proper institutionalized framework of appointment, which is both transparent and efficient in its working, he blindly went in for winning the case. Later on, in the Third Judges Case, the Supreme Court again makes the same error when it increased the strength of the collegium to five senior most judges of the Supreme Court.

Nariman probably laments the judgment more in retrospect than he would have ever imagined while fighting the case. He feels that although the system has been more or less efficient in making sure that the best of jurists make it to the Apex Court, he has three problems with the current system and the way it has worked out so far, which in turn make him feel that he would have preferred to have lost the case in the first place. Firstly, in over 60 years, there have hardly been any women judges. [4] Secondly, there is no empirical evidence supporting the unwarranted assumption that the five senior most judges are necessarily the most competent and wise with respect to the appointment of judges. He thinks that the consensus of all the judges should be considered in the matter of appointment. Thirdly, there is no efficient database which can be referred to at the time of appointment so as to have a look at the record of the judges at various High Courts, which would serve as the best criterion for their appointment at the highest judiciary. It would not be unfair on him, if the paper is to presume that he knew of these three prospective problems emerging, in case he were to win the Second Judges Case, while he was taking up the aforementioned case as well. This in turn establishes that he himself never personally believed in the petitioner’s cause, but only took it up to fulfill his obligation as a professional lawyer.

The Righteous and Frank Nariman

In Chapter VIII, The Internal Emergency, Nariman talks about how he felt during the emergency. One day after Indira Gandhi, the then Prime Minister, imposed the internal emergency, i.e., on 26th June, 1975, Nariman resigned from his post of Additional Solicitor General to mark his protest to the unethical move by the then Prime Minister. Since, the news was censored and only foreign media published it, it did not even create “ripples” to the scenario in India.

He recalls how he had to struggle in finding accommodation in Delhi post his resignation. He says that in Delhi, people go the way the wind blows. People were afraid to let out their houses to Nariman as he had dared to go against Indira Gandhi. He recalls that for several weeks his wife had to hunt for someone who would let his family in their house. He further recalls a conference, in which he had been invited to before the emergency was imposed, in capacity of a law officer of the Government of India. Later, the organisers pressed on their request to invite him, in his personal capacity as a senior lawyer of the Supreme Court, regardless of the changed circumstance. When Nariman reached there, he was told how the organiser’s son, a law student, had been wrongly detained. Nariman was informed by the anxious father that his son was detained under the Maintenance of Internal Security Act (MISA) because of his opposition to the idea of the teacher’s idea of the entire class going on a march to support Indira Gandhi’s 20 – Point Programme on a weekday, at the cost of missing classes. This lead to the district magistrate booking the young boy for being a threat “to the security of the State”. Nariman tells how the bank after “many anxious moments” was finally returned to the parents.

“With such repressive laws, so oppressively implemented, the people looked up to the Courts. But as it ultimately turned out, they looked in vain.”

He further goes on to show how the then Attorney General of India in the ADM Jabalpur case said that, if his arguments were to stand, a law abiding citizen who was being targeted by a police officer only because of personal vendetta against the former, would have no judicial remedy during the emergency. Thus, Nariman shows how the suspension of the Fundamental Right to Life guaranteed under Article 19 and Article 21 could lead to making the powers bestowed upon the Government and its officials, unabridged to the extent that there would be absolutely no way to check abuse of the same. He then asserts that if in a country like India, a law is passed, which enables the executive to misuse it, the executive will most definitely do it. In such a situation, he believes it is the Court’s duty to not let the people down in such a deplorable situation and that is why he calls the aforementioned judgment “deplorable” in itself.

Furthermore, he goes on to praise Justice Khanna’s dissenting opinion in the famous judgment. He says that Justice Khanna’s attempt to hold that Right to Life and Liberty are Natural Rights, not rights bestowed upon men by a Constitution, but inherent to all men by virtue of them being humans, cannot be praised enough. He praises Justice Khanna for being upright and not bowing down to the tyranny and obvious might of Indira Gandhi. He also condemns Indira Gandhi’s actions of promoting Justice Beg to the post of Chief Justice of India because he was close to him, when clearly, Justice Khanna had the best and natural claim to the post.

This establishes that Nariman himself was a man of strong will power, who would condemn whatsoever and whomsoever was wrong, without caring much for the consequences. Furthermore, it is quite clear that he was a strong critic of Indira Gandhi. This also establishes that he has been fairly frank in his autobiography as opposed to being diplomatic and shrewd like a plethora of other authors.

Conclusion

Apart from the various shortcomings which become fairly obvious at various points in the autobiography, the autobiography is a well written one. With a legal luminary writing his own biography, there was never a real possibility of there being a lack of clarity or coherence. The shortcomings, though, are the lack of personal perspective of Nariman in various chapters of the book. Nariman never really tells what he really feels about most of the things he has talked about. It is left to the sweet will of the reader himself to read and infer the same, but when the reader, however, does the same, he notices two important things about Nariman. As opposed to most other top shot lawyers, like Ram Jethmalani, who are extremely aggressive towards anyone with opposing views, Nariman seems to be very warm and accommodative of opposing viewpoints.  Firstly, as the paper observes in the second part, Nariman’s ideas of professionalism of the legal profession take precedence upon everything else. He might as well argue for a cause that he personally believes against. Secondly, as the paper observes in the third part, Nariman is very frank as opposed to being diplomatic. He does not spare the ex-Prime Minister of India, Indira Gandhi, for what he thinks were acts in furtherance of abuse of her constitutional powers. This goes on to establish that only second to professionalism come his ideas of moral righteousness.

Edited by Neerja Gurnani

[1] Prime accused in the Jessica Lal murder case.

[2] MoneyControl.com, Ram Jethmalani Defends His Decision to Defend Manu Sharma, November 28, 2006, available at http://www.moneycontrol.com/news/features/ram-jethmalani-defends-his-decision-to-defend-manu-sharma_253255.html (Last visited on April 21, 2014).

[3] Ibid.

[4] Five of them, to be precise.

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