The passing away of senior advocate Fali Nariman, on 21 February 2024, at the age of 95 years, represents the loss of the first generation of lawyers who started practice after the Constitution came into force. Fortunately, there are still some around and practising, so there are still some living memories of those times with us. K Parasaran, who represented Ram Lalla, and K.K. Venugopal, who can still provide us with some insights into what a living Constitution means. These were people who shaped and moulded the Constitution we inherited in 1950, and as we see it today. The history of law, and now I must add, of lawyers, reflects the history of a country, as there can be no law without politics and no politics without law, not in a rule of law society anyway.
Speaking of generations, I often wonder what it must mean to the sitting judges before whom Nariman appeared, who are the children of his contemporaries. Though much senior to them, his age does not overshadow the respect that he shows for them as judges. He himself was famously criticised for appearing in the Supreme Court of India after his own son became a judge of that court. This pointed not so much to him as it did to systemic problems of the legal profession. After all, since the time the Constitution came into being, we have had almost six or seven generations of lawyers, with a generation being considered 10 years. Each such generation took something from him and rejected something.
So much has changed since he joined the bar, and yet to witness Nariman argue a case in present times, one did not get the impression that he belonged to a different period of our history. His arguments in defence of the independence of the judiciary were perennial and classic for a rule-of-law society. Young and old lawyers sought him out—those who could afford his fees to argue a case and those who could not deliver a speech on human rights. Others founded institutions with him at the helm of affairs. He straddled the world of law and politics and was a presence in the media when there was a Constitutional crisis to comment on. He remained true to the defence of the basic features of the Constitution until his dying days.
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Nariman, the lawyer, was the product of Bombay, a member of the minority Parsi community in the commercial capital of India. The Parsi community of Bombay has always contributed a judge to the Supreme Court, partly because it is a minority community that requires adequate representation and partly because of their command over commercial laws, thanks to their historic links with the Parsi business houses of Bombay, now Mumbai. His primary field of practice was commercial law until he shifted to Delhi in 1971 to be an Additional Solicitor General under the then-Congress government.
He demonstrated his commitment to democracy when he resigned during the Emergency of 1975. He straddled the entire political spectrum when he was nominated to the Rajya Sabha under an NDA government. To the generations who came after him and who did not represent big business, he held attraction due to his defence of the independence of the judiciary from the executive, not letting go of any opportunity to challenge any such attempt by law or executive action to interfere with its functioning.
He helped put in place the collegium system of appointment of judges to the Supreme Court, ensuring that the executive, though consulted, did not have the final word in the appointment of judges. No matter how flawed the system may be, it is intended to keep the executive out of the final decision-making process while allowing for consultation with the government of the day. This is something we owe to him, and it becomes our duty to continue his legacy.
A unique legal journey
Nariman came after a generation of lawyers who played a dominant role in the freedom movement and, naturally, in the drafting of the Constitution itself. They were also the transitional lawyers bridging the gap between colonialism and republicanism. Those who went on to become leaders of the bar were also individuals who had honed their skills as lawyers before the Constitution came into force. They went on to become Attorney Generals and Solicitor Generals. Nariman followed in their footsteps, but he was among the first generation of post-Independence lawyers in the country working with a written Constitution. It is this historical fact that gave him the opportunity to shape a document that was to govern the citizens of the country for all times to come.
Former Vice President M. Venkaiah Naidu presenting the 2018 Lal Bahadur Shastri National Award for Excellence to Fali S. Nariman, in New Delhi on October 22, 2018. | Photo Credit: Sandeep Saxena
His generation of lawyers was aligned with business houses and landlords in an independent nation, who were the main litigators in our constitutional courts. They experimented with the Constitution, challenging laws based on violations of fundamental rights which affected their business and landholdings. These challenges were mainly related to land reform laws, taxation laws, and labour laws. When a challenge did arise regarding preventing detention based on the denial of the right to life and personal liberty, the Court failed us in A. K. Gopalan v. State of Madras (1950), holding that as long as the procedure prescribed by law was observed, the reasonableness of the law could not be tested in court. Courts and lawyers were focused on the right to property as a fundamental right. Traditions are set at the commencement of institutions, and they had this amazing opportunity to set the rules of the game.
A question may be asked: to what extent did Nariman succeed in influencing generations who came after him? While many of us came of age as lawyers under his shadow, we did not necessarily follow his path. New roles were being fashioned for the Court in the post-Emergency phase, and we saw the growth of Public Interest Litigation, fully supported by a judiciary anxious to recover from its failure to protect citizens during the Emergency.
Concerns were changing, and the focus shifted to the right to life and liberty under an increasingly authoritarian government. Nariman himself saw this transition in his lifetime and was part of it. Here there would be challenges of straddling two worlds, the world of business and the world of human rights. An emerging public interest bar would assert itself in court, taking on cases relating to women’s right to equality in employment, which clashed with the interests of employers who sought his advice. The big clash came over the Union Carbide case, one of the world’s worst industrial disasters in December 1984, and Nariman found himself representing Carbide. An unfair settlement was signed between Carbide and the Union of India, represented by the then Attorney General K Parasaran, which put the lid on all investigations and legal accountability. A vigilant community of lawyers representing the victims, of which I was one, successfully challenged the unfair settlement, which was reopened and later justified. It is this case for which Nariman found himself regretting his appearance, but history had moved on. Under the able guidance of another famous Parsi lawyer from Mumbai and his contemporary, the late Soli Sorabjee, the closed prosecution was reopened and lingers on to this day.
Changing times
Parallel developments took place in the late mid-1980s when PIL was dominating legal discourse in courts, which continues to this day. A time came when Nariman was part of it when he was invited to argue the Vishaka case (Vishakha and others v State of Rajasthan), which laid down the guidelines for dealing with sexual harassment at the workplace for women. Generations of lawyers sought inspiration from the core human rights values of the Constitution, and Nariman witnessed these changes. There was hardly any doubt that times were changing, and no lawyer could afford to ignore the march of human rights. Later, he found himself representing the parents of the LGBT community in the ongoing challenge to Section 377 of the Indian Penal Code.
The National Law School lawyers attempted to change the rules of the game, being well-suited to the needs of structural adjustment and neoliberal policies all over the world and the demands of globalisation. Many entered the comfort zone of the hallowed law firms, giving a go-by to litigation, but some did follow in the footsteps of the lawyers of Nariman’s generation.
Regulatory agencies were the new forms of litigation, and lawyers moved in that direction, but litigation in the Supreme Court continued to be dominated by the generation of Nariman. His passing and that of his peer group will demand a different kind of leadership at the bar. Electricity, infrastructure, and the internet were the new issues that will require taking up in courts. Challenges to oligarchy in business have reached the courts and will be dealt with in due course of time by a younger generation of public interest lawyers.
Surprisingly, anti-competition law, which should have gone hand in hand with these developments, has never come into its own at the same time. The lawyers who are today defending neoliberalism or opposing it in court will take from him but will be compelled to find the tools to dismantle an oligarchy or defend it.
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More recently, we have seen young lawyers from all law schools align themselves with social and political movements, defending those unlawfully detained in the name of conspiracies and those unjustly persecuted for their social media posts in the name of creating communal disharmony. It is almost a return to the values of the freedom movement with the Constitution in hand. This gives hope for the future.
What will this generation take from the late Fali Nariman? Surely his commitment to the rights of minorities, I hope, and to secularism. We are dealing today with an “ideological state”. The evidence is on the table, both the tables of the judiciary and the executive. Our challenges will be many. What will we take from the Bhishma Pitamah of the legal profession? I can only account for myself. I learned from him that the master’s house can be dismantled with the master’s tools, which will be only the Constitution of India. Our challenge will be to defend it in its present form.
Indira Jaising is a senior advocate of the Supreme Court of India.
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