Fali Sam Nariman, a renowned lawyer, in his autobiography tries to influence that one should be righteous both in his life and profession. Through laying out how the Indian judiciary dealt with a number of seminal cases that the author argued in Indian courts, the book adroitly embraces and explores law from a larger stance, as well as describes India’s historical and judicial history. It delves into a side of law that few individuals deem: dissent, resistance, and the ramifications of going against the establishment.
Let’s discuss the highlights:
- ‘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’.
Being a Lawyer one has to armor both the victim and the criminal.
The ‘Tribune des Droits Humains‘ dubbed Nariman, the lead attorney for the Union Carbide Corporation, a ‘Fallen Angel,’ casting doubt on his status as a human rights activist. In reaction, he wrote a letter in which he stated:
“Lawyers, who are human rights activists should not accept briefs of those who violate the human rights of others’, is impractical and fraught with grave consequences as it puts an almost impossible burden on the lawyer of pre-judging guilt; and violates a guaranteed constitutional right of being defended.”
- Nariman_ a righteous person.
In the ADM Jabalpur case, the then-Attorney General of India said that if his claims were upheld, an honest citizen who was attacked by a police officer solely for personal vendetta against the latter would have no legal redress during the emergency.
He also recalls a seminar to which he had had been invited, where a concerned parent told Nariman that his child had been imprisoned under the Maintenance of Internal Security Act (MISA) because he had objected to the teacher’s idea of the whole class demonstrating on a weekday to help Indira Gandhi’s 20-Point Programme at the risk of skipping lessons. As a result, the district magistrate charged the young boy with endangering the state’s welfare. Nariman describes how the boy eventually returned to his parents after numerous traumatic periods.
He then asserts that:
“When a law is enacted in a country like India that allows the executive to manipulate it, the executive will undoubtedly do so. With such draconian rules, stiflingly enforced, the people looked to the courts, which had an obligation to not let the people down in such an abhorrent circumstance. Yet, as it turned out as setting Thames on fire.”
He resigned as Additional Solicitor General in defiance of the then-Prime Minister’s unethical decision to declare an emergency.
One case, I presume might be explicitly in breach of an advocate’s etiquette while defending a person convicted of a crime, regardless of the advocate’s own view of the accused is:
The indigenous tribes were relocated due to the Narmada Dam’s rising height in Gujarat, which was followed by persecution of Christians and the burning of their Bibles.
In a PIL filed on their behalf, Nariman (senior counsel in the Supreme Court for the state of Gujarat) obtained a phony promise that such massacres must cease. As a result, Nariman stepped-down in December 1998 vowing not to represent the State-of-Gujarat, thus became guilty of pre-judging.
- The petitioner’s cause is not the prerequisite for a lawyer to fulfil his professional responsibilities.
Nariman bemoans the Second Judges Lawsuit, in which he represented and won for the petitioner, the Supreme Court Advocates on Record Association, in an effort to reverse the First Judges Case.
In the First Judges Case, the Government of the day got a free hand upon judiciary, before the appointment of judges to the SC, only a cursory consultation was sought, including but not limited to the Chief Justice of India. This, then, led to a serious manipulation by the Government in terms of the judges, who were appointed.
In 1977, CJI A.N.Ray transferred High Court judges after they had decided a case contrary to the needs of the government at the time. This rule existed prior to the First Judges Case decision, and it was vulnerable to nepotism, creeping into the appointment of judges as the ultimate authority was to rest in one person, i.e., the Chief Justice of India.
In the guise of judicial freedom, the court was shown the stick of precedent in 1985, and begrudgingly vouchsafed the cardinal jurisdiction to the CJI.
He contested the lawsuit, aware that even though he won the Second Judges Case, the result would not be the one he desired, i.e. transparency.
As a matter of fact, the Apex Court, in its sage advice, opted to bequeath the constitutional authority on a collegiate of three of the Apex Court’s most senior judges (the number was later raised to five in the Third Judges Case), ensuring that only the best of jurists makes it to the Supreme Court. The likelihood of these three/five being distorted, on the other hand, does not seem to be significantly smaller than that of the CJI individually. As a result, despite understanding that his aim should be to establish a proper institutionalised system of appointment that is both candid and effective in its activity, he blindly went in for winning the case.
The new system had three issues, leading him to believe that he would have chosen to lose the case in the first place.
- Firstly, in over 60 years, there have hardly been any female judges.
- No credible proof to back up the unfounded assumption concerning the Supreme Court’s first five judges was there. Seniority is not necessarily coupled with competence or expertise. When a request is made for the nomination for a judge of the Supreme Court, there is no reason why all of the judges of the SC should not be consulted. The five-judge shuttered framework should be repealed.
- Third, there is no effective archive that can be used at the time of appointment to review the judges’ records at different High Courts, which should be the appropriate metrics for their appointment to the apex judicial branch.
He also overtly condemns Indira Gandhi’s actions of promoting Justice Beg to the post of Chief Justice of India because she was close to him, when clearly, Justice Khanna had the natural claim to the post, because in the case of ADM Jabalpur (1976), Justice Khanna stood firm and refused to submit to Indira Gandhi’s tyranny and apparent power, by signing the dissent (as well as his future chief justiceship) to maintain that the Right to Life and Liberty are natural rights, not liberty imposed on persons by a Constitution, but rights intrinsic to all humans by virtue of their being folks.
With a legal luminary writing his own biography, there was never a real possibility of there being a lack of clarity or coherence.
Nariman is a person calling a spade a spade. 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. We saw series of anecdotes and musings on the people and events that have shaped his life.
This goes on to move us that code of professionalism and the ideas of moral righteousness should prevail, and we should try to imitate the ‘living legend’ not overtly or completely but to a great extent possible with one’s conception of self-righteousness.
This article has been authored by Manav Kothary, first-year law student Karnavati University(UWSL). Presently contributing author at The Blue Letters.