Lawyers who matter – Fali Sam Nariman

“Tradition has it”, Justice William Brennan of the US Supreme Court famously said, “law is not made by Judge alone, but by Judge and Company”. Adjudication at the highest court is indeed a partnership between the Bench and the Bar. Nobody epitomises this partnership more than the contribution of Fali Sam Nariman in the rulings of the Supreme Court..Nariman first appeared on the national scene in Golaknath’s case along with Nani Palkhivala. After being appointed as an Additional Solicitor General in 1971, he represented the Government on major Constitutional issues. He was set to become the Solicitor General, but destiny willed otherwise. Emergency was imposed and he resigned from the office — the only public official to resign his post in protest of the Emergency. Years later he wished that he were the Attorney General so that his resignation would have created a greater impact!.He argued several leading cases before the Supreme Court involving fundamental rights. He defended the right of press in The Indian Express case, where the Supreme Court struck down the order of the Delhi government threatening to demolish The Express buildings as malafide and violative of the constitutional right of free press. He defended the conscientious objection to sing the national anthem in the Jehovah Witnesses Case (Bijoe Emanuel case) He defended the constitutionally guaranteed right of the minority educational institutions in several leading cases culminating in the T.M.A. Pai Case..But his greatest contribution lies in protecting the independence of the court and the integrity of the judicial process. He was the lead lawyer in the Second Judges case where the judiciary took over the right to appoint judges, securing the power of judicial review over legislations specifically exempted from judicial review by Parliament (Ninth Schedule Case), championing the cause of the subordinate judiciary for a better pay and terms of service (All India Judges Association case)..Working with him, I could notice that he was thinking about the brief even after the briefing was over; always anticipating questions that might fall from the bench. His mind would penetrate to the deepest aspect of a case and express it in a manner that would sound very obvious to the judge. He would have surveyed the entire arena and would have chosen a path which would have had the least resistance from the judge. There is always an anecdote, a historical narrative, an appropriate precedent and the factual consequences if his argument was not accepted. Felix Frankfurter said that the task of an advocate was to seduce and seize the judicial mind to a predetermined end. No one excels at this art more than Nariman..Being a private practitioner enabled him to take positions and cases which were at odds with that of the establishment; he rejected the office of the Attorney General several times. Although the NDA Government nominated him as Rajya Sabha Member, it did not stop him from criticising the government on minority rights or successfully challenging the divestment of oil firms, a major policy decision, in the Supreme Court. He returned the brief for the Gujarat government in the Narmada water dispute, when the Christian minority complained of attacks..Nariman’s contributions were not confined to the courtroom. Many a time, the institution of an independent judiciary has to be protected from attacks by the legislature and the executive, but sometimes it also has to be protected from the judges themselves. His personality and a lively pen enabled him to ask judges to exercise restraint in exercising their contempt jurisdiction, be more open on judicial appointments and more forthcoming on issues on judicial accountability..Assisting him on a case, I recall Chief Justice Patnaik complaining to Nariman (who was appearing before the Chief Justice) about the enormous workload and how judges of other supreme courts do not have to bear similar burden. Prompt came the reply — “it just shows the confidence of the citizens in this Court!”.In a career which which is as long as that of the Constitution and the Supreme Court, it was this confidence which Nariman strove to protect. .Vivek Reddy was Fali Nariman’s junior, and is currently practicing in the Andhra Pradesh High Court. A version of this article appeared in The Indian Express.