Bar & Bench in conversation with Senior Counsel Fali Sam Nariman. India's most respected and well versed lawyer speaks on issues ranging from legal education, practice of law, ethics, work life balance and several other topics. Read on to this exclusive story of India's greatest legal minds.
Why did you choose law? Talk us through your college days?
FN: Law was the last option for me. My father wanted me to take the Indian Civil Service exam, but I knew he couldn’t afford it. I had secured a second class in my B.A. degree and there was no other choice left other than law, as I had no sense of science or mathematics.
In the Government Law College we use to run a Parliament and we ran it almost as well as or as badly as its being run right now. At the college Parliament, the Principal was the King and we followed strictly all the rules by the book. We had a system of election and I belonged to the Democratic Party. I was elected as the Prime Minister for the 1st year, leader of the opposition party in my 2nd year and as a Speaker in my 3rd year.
How tough were the initial years of practice?
FN: The initial years were tough, although how tough can’t be measured. We were fortunate enough because if we worked hard the Judges were extraordinarily competent and very kind to juniors. The Judges didn’t bother about whether a senior appeared or not. They were very happy if a competent junior appeared, especially after an experience of 5 years or so.
Even when you were a raw junior at the Bar, the Judges use to say in a very heavy voice, Notice of Motion to a Senior Counsel, that you are appearing alone? Then the Solicitor would take the hint and we would get the crumbs from a brief -Mr. Nariman also appeared along with the Senior Counsel! I knew nothing at that point of time, but that was very encouraging.
With various choices available for law students today, what advice would you give to today’s students and budding lawyers?
FN: Today you have tremendous choice, comparatively we knew nothing, probably 10 percent of what the law students know today. For aspiring law students I would like to say in your career, never try to show off. There is a tremendous amount of knowledge to be learnt, there is a tremendous amount of experience to be had in the field of law and no one can say “I’m on top and I know everything”. No, you don’t. The moment you say, you know everything, I’m afraid that’s the beginning of your downfall. It’s a never-ending process of learning and humility is essential because you can never learn the law. At the age of 92 my senior Jamsetjee Kanga used to say “I’m still learning” and he really meant it. If an odd chap walked into his chamber, he would just pick up a case and tell us about it, he was like a wizard. He could spot the most important point in the case, unlike us.
I don’t like the system of Moot-Courts these days, in law schools. My grand-daughter participates in these Moot-Courts, but I don’t like the idea of saying, in A vs. B it was said etc. It makes no difference to what was said. According to Halsbury’s, it was said in Queen vs. Latham that it makes no difference what was said in a given case because by and large all of it depends on the facts of the case, except for constitutional matters.
You resigned from representing the Gujarat Government after the attacks. How important are personal values in the legal profession?
FN: I represented the Gujarat Government on the rehabilitation program on Project Narmada. At that point of time, the Christians were harassed, the Bibles were burnt and even Christian men and women were killed. In protest, I went to the Minister and I was told that this burning of Bibles and Christians won’t happen, but it still happened and I returned the brief and a big chaos was created.
Law is a matter of the heart, as well as the head. You have to have compassion; it is one of the greatest qualities. Lord Denning and Justice Krishna Iyer have both said that compassion is extraordinarily important in the law, amongst lawyers and particularly amongst Judges. One must be able to assess whether a person has something genuine to say in a case.
Bar Council of India has proposed several changes in the legal education space? What are you comments on the BCI regulating legal education?
FN: Anything is better than the Bar Councils, because Bar Councils are elected bodies and they haven’t done too well. Exceptions are there, for instance the Solicitor General of India, (Gopal Subramanium) is a very competent Advocate and is now the Chairman of the Bar Council. Therefore, if his approach is taken likewise, it will be a boon. Some of the initiatives of the Chairman are laudabale such as the Bar exam and other changes that he has proposed.
FN: My senior’s, senior Jamsetjee Kanga was my mentor. He was like a father figure to me. He died at 93 and he is the one who, at the age of 92, told me that he was still learning. He had a tremendous memory and so does my son Rohinton. He was an Ordained Priest and so is Rohinton.
Appointment of Judges – An area where you have voiced your concerns. How do you think we can improve the appointment process? Do you think the United States system of Senate approval should be adopted here?
FN: The collegiums system doesn’t and hasn’t worked at all. The US system won’t work here either. I’m not sure if the National Commission will work. I myself was very enthusiastic about it, but now with years of wisdom, I’m very doubtful of whether it will work at all. I’m not sure of who appoints, but the person who gets appointed should have something in him or her which makes them diversify and grow. I have seen Judges grow from Court to Court. There was Justice J.M. Shelat who started off as a Judge in the City Civil Court and was reasonable, nothing great. When he reached the High Court he was much better and when he came to the Supreme Court he was extremely good. He had shed all his inhibitions, his idiosyncrasies. As you grow you have to shed all your weaknesses.
What inspired you to pen down your thoughts finally in ‘Before Memory Fades’? How did you go about writing this book?
FN: My publisher actually pestered me to get down to it. I started writing couple of years ago. The thought had occurred, but I never put pen to paper. It is difficult to write an autobiography and try not to project too much of yourself.
The legal area which interests you the most and why?
FN: In my view, I’m most fascinated by constitutional law. How to work the constitution is far more important than how to write it. It is much easier to write the constitution. I recall when the Foreign Minister of Bangladesh came to visit me, (to draft the Bangladesh Constitution). I was the Additional Solicitor General then. We gave them ideas and drafts were exchanged, but it didn’t last for more than a couple of years. Writing a constitution is simpler; borrowing ideas from everywhere is nothing great. How to work the constitution is a grave challenge and it’s fascinating.
Books you read
FN: This is a stock question and I cannot rattle off the names of all the books I read – I generally keep upto date with recent academic writings in law and literature; and to keep myself upto date I also subscribe to and browse through the New York Review of Books – a bi-weekly feature which gives all the current publications around the world – as well as the London Review of Books.
FN: I don’t take on much work now. I’m 82 and most people retire, but lawyers never do, they only drop dead. It’s very difficult to say “I’m going to retire”, although in England, judges and lawyers do. In any case if you don’t, you have to leave off at some point of time. I return more cases than I accept and it’s been so, for a long while now. The younger people are outstanding, both in our Bar as well as on the Bench. We have young Judges who are extraordinarily good.
FN: In a long life of ups and downs perhaps the most embarrassing has been when I was part of a team representing Bombay University against a visiting team from England of Oxford and Cambridge University: this was during my college days in Bombay in 1949. I was quite a debater and took pains over my speech and learnt it over by rote. In the debate I had 15 minutes and I performed excellently in the first 12 where I remembered all that I had mugged-up, and then memory failed! Before an audience of about 300 in the Convocation Hall of the Bombay University it was the most embarrassing moment of my life. For several years thereafter, I used to have nightmares about this memory lapse! Since then I have always taken care to have a transcript of what I would be saying so that when that unreliable ally “memory” failed, the script could take over!
Do you have any regrets?
FN: One gets the usual regrets from time to time. When you lose a case you regret it. One very important thing that young lawyers must know is that when one argues a case and later in the evening you ponder over it and say, that’s what I should have said (but you never said it), that’s the only regret. It could have been the winning point or something you wish you had not said, which is even worse. If you get angry at that point in the courtroom, losing your temper can be a disaster. You can’t afford it because your client suffers and nobody likes you for it. It all comes with age and practice.
Also read: Lawyers who matter - Fali Sam Nariman