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Mainstream, VOL 62 No 8 February 24, 2024

Death of F.S. Nariman Marks The Loss of Voice of Conscience | Vijay Kumar

Saturday 24 February 2024, by Vijay Kumar



The passing away of Fali S. Nariman is an irreparable loss to legal fraternity, nay liberal voices all over the world. He has been a voice of conscience for Indian Judiciary. He was liberal lion and lived by the principle, and never compromised with it.

This tribute will refrain from analysing his unmatched legal acumen, his standing as a tallest constitutional lawyer and numerous distinctions, as it would amount to gilding the lily.

F.S. Nariman resigned from the post of Additional Solicitor General in protest against imposition of Emergency, which was imposed after then Prime Minister, Indira Gandhi, failed to secure absolute stay from Justice Krishna Iyer, acting as Vacation Judge of the Supreme Court, against the judgment of Allahabad High Court setting aside her election. During those days, there was only one post of ASG, and naturally it was prestigious assignment, compared to present time, when there is more than dozen of Additional Solicitor Generals. Again, when minority was attacked in state-sponsored pogrom in Gujrat, he returned the high-stake brief of Gujrat Government in case pertaining to the construction of Narmada dam.

F.S. Nariman played a lead role in campaign that culminated in seizing power of appointment of constitutional adjudicators from the executive and vesting in collegium, of senior judges of the Supreme Court through judgment in second judge case in 1993. In course of time, he, too like many others, became critical of the functioning of collegium, particularly with opacity inherent in it. But when Narendra Modi government introduced, immediately after coming to power, the National Judicial Appointment Commission Bill through 99th Amendment in 2014 and got it passed almost unanimously (Late Ram Jethmalani was the sole dissenting voice in Rajya Sabha),Nariman, like many other liberals, realized that Hindu majoritarian government will fill up the constitutional courts with the judges perceived to be sympathetic of RSS and its toxic ideology. Nariman rose to the occasion and led the challenge by spending his entire time, energy and resources in saving the independence of judiciary from the sectarian government, and succeeded in getting 99th Amendment struck down on the ground of negation of independence of judiciary, a basic feature of the Constitution.

Fali Nariman’long life was dedicated to the preservation of independence of judiciary without which liberal democracy is inconceivable. He was equally committed to the principle of secularism and has been a bold and principled voice against attack on it.

When the Supreme Court amended the rule of allotment of chambers to lawyers in 1998 by making even senior advocate eligible for allotment, he was allotted chamber alongwith many other senior advocates, but he was the only senior advocate who refused to take the chamber allotted to him. In chamber allotted to him, a chemist shop run by Apollo Pharmacy was opened which is catering to the medicine requirements of the members of the Bar.

I would end up my tribute with a note of personal whiff. When my second book, “THE THEORY OF BASIC STRUCTURE : SAVIOUR OF THE CONSTITUTION AND DEMOCRACY” was released in July last year, I, rather reluctantly at the persuasion of friends, sent one signed copy to him in which I wrote “That your presence remind us of the fast vanishing distinction between great and successful advocate”. No sooner had he received my book, then he finished reading it with alacrity, and was courteous and decent enough to write down his compliment and send it by post, and I am tempted to reproduce the same.

“Mr.Vijay Kumar, September 21, 2023
Senior Advocate,
Chamber No.221,M.C.Setalvad Block,
Supreme Court of India,
New Delhi - 110001.

Dear Vijay Kumar,

Many thanks for sending me your book. I have read through it: it is the most exhaustive account, on the subject and I congratulate you. You have laboured long and well.

I sincerely hope what you write will receive the attention it deserves – especially by each and every Judge of the Supreme Court : please ensure that it is sent to every Judge of the Supreme Court – not present Judges alone but to judges appointed in the near future.

My warm regards and good wishes,
Yours sincerely,

(Fali S. Nariman)”

This complement is a lasting source of satisfaction and inspiration for me, and I would treasure it till my last breath.

F.S.Nariman was most respected and known legal luminary all over the world. He remained active till his death, and his last book “YOU MUST KNOW YOUR CONSTITUTION” was published only few months back. Fali Nariman led a long and fulfilling life and achieved many distinctions. His death is loss of voice of conscience for Indian Judiciary.

(Author: Vijay Kumar, Senior Advocate Supreme Court of India & author of of the book ’The Theory of Basic Structure: Saviour of The Constitution and Democracy’)

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