Obituary: Fali S. Nariman (1929-2024)

The Nation mourned the loss of constitutional lawyer, eminent jurist and among the most respected champions of civil liberties in India, Fali S. Nariman, who passed away at 12.45 am on Wednesday. Nariman, the much-admired jurist who was awarded with Padma Bhushan and Padma Vibhushan during his illustrious career, was 95.

Messages of grief poured in with Prime Minister Narendra Modi mourning the loss of “the most outstanding legal minds and intellectuals. “He devoted his life to making justice available to common citizens. I am pained by his passing away,” said the PM, writing on X.

Chief Justice of India D. Y. Chandrachud opened the day’s proceedings in the Supreme Court by paying homage to the legal luminary by addressing the Attorney General R. Venkataramani, “Mr Attorney General, we mourn the sad demise and passing away of Fali Nariman. He was a great giant of an intellectual.”

Nariman was active and alive to political and legal developments till the end. Civil liberties lawyer Prashan Bhushan posted a letter by Nariman which he wrote to him just five days back after the Supreme Court judgement on electoral bonds. Congratulating Bhushan, who was among the lawyers for the petitioners against the bonds, Nariman wrote, “I am particularly impressed that the five-judge bench has held – in no uncertain terms – that ‘manifest arbitrariness’ in enacted law is now an integral part of Article 14: differing from the three judge bench decision of Jeevan Reddy J. Since Article 14 and 21 are interrelated and since Article 21 has been authoritatively re-worded by the nine judge bench (in the Privacy case), I do hope that this will enable the Supreme Court – at some point in the future – to strike down the no-bail for now provision in the recently enacted laws.”

This was quintessential Nariman whose became a household name after he resigned as Additional Solicitor General to protest against the Emergency, the only law officer to have done that when a majority of the legal community and the intelligentsia had caved in to Indira Gandhi’s authoritarian regime. Recounting his experiences after he had resigned in a newspaper article, Nariman wrote: “Resignation from the government may have been heroic – but this was only years later in retrospect. In Delhi people go the way the wind blows… My resignation made no impact, not even ripples, in the political waters of the time. I was simply not important enough! Later on, I remember telling my wife, ‘I wish, I sincerely wish, I was Attorney General on June 27, only for the reason that my resignation would then have had some effect’. The high commissioner of Australia Bruce Grant told me that he had met Indira Gandhi a couple of weeks after June 26, and she had expressed shock and surprise at the total lack of resistance – amongst the people – to the Emergency. She particularly mentioned to him that she was more amazed at the lack of reaction amongst the intelligentsia!”

Besides his commitment to civil rights and individual liberties, Nariman appeared in several landmark cases such as Golaknath-versus-State of Punjab in which he appeared as a junior assisting the legendary Nani Palkhivala. This case led to the reversal of an earlier decision of the Supreme Court which had upheld Parliament’s power to amend all parts of the Constitution, including Part III related to fundamental rights. The Golaknath judgement held that Parliament had no power to curtail fundamental rights and paved the way the way to the basic structure doctrine in the Kesavananda Bharati case, keeping a check on Parliament’s power to amend the Constitution. He was involved in S. P. Gupta and TMA Pai Foundation which have defined constitutional norms and the course of jurisprudence over the years. Nariman defended the right of the free press in the celebrated Indian Express case where the Supreme Court struck down the order of the Delhi Government threatening to demolish The Express building as violative of the Constitutional right of free speech and expression.

A significant departure in his career was during the Bhopal gas tragedy case when he appeared for Union Carbide Corporation and was severely attacked. He responded to the criticism by stating that the suggestion who are defenders of human rights and civil liberties should not appear on behalf of those who “violate human rights of others”. Nariman argued that this is an impractical view fraught with grave consequences as it puts an impossible burden on lawyers of pre-judging guilt.

In his autobiography ‘Before Memory Fades’, Nariman recounted why he returned his brief to the Gujarat Government in the Narmada rehabilitation case. He was appearing as senior counsel for the State of Gujarat in a PIL filed on behalf of tribals displaced by raising the height of the Narmada dam. While the PIL was pending, Nariman read about Christians being harassed in some parts of Gujarat and the Bible being burnt. He took up the issue with the then Chief Minister of Gujarat Keshubhai Patel but the situation worsened with churches being burnt in many parts of the state. In December, 1998, Nariman returned the brief and said, simply, “I would not appear for the state of Gujarat in this or any other matter.”

Nariman authored several books including ‘The State of the Nation’, ‘Before Memory Fades: An Autobiography’, ‘God Save the Hon’ble Supreme Court, ‘India’s Legal System’. Over the last few years, he was concerned about rise of Hindu majoritarianism in India and the spread of coercive and punitive legislation. He was a vocal critic of the sedition law and spoke openly against it continuing to be on the statute book. In the passing away of Fali S. Nariman, India has lost the conscience-keeper of the Constitution.

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