'Bhishma Pitamah' of Indian judiciary Fali S Nariman dies

‘Bhishma Pitamah’ of Indian judiciary Fali S Nariman dies

NEW DELHI: Some soldiers sleep with their boots on. Fali S Nariman, you would think, slept with his robes on. The indefatigable jurist, who passed away on Wednesday at 95, was prepping for a submission to be argued before a Constitution bench in what turned out to be the last day of an extraordinary life.

Born in Rangoon in 1929, he landed in Delhi as a refugee in 1942. He started practising law in Mumbai in 1950. The remarkable thing is how his evolution as a jurist over 70 years mirrors India’s jurisprudential journey. Most of the cases that built its social, political and legal landscape had a Nariman imprint. Referred to as ‘Bhishma Pitamah’ of Indian judiciary, he was conscience keeper and guiding light for legal fraternity.

Widely considered as one of India’s finest lawyers, Nariman not only guided fellow professionals and judges but for decades was the go-to legal expert Presidents first approached when they sought an opinion on a tricky issue.

Nariman’s principles defined his legal journey

Govts and CJIs offered Fali S Nariman preferments lawyers dream of. He was offered judgeship, first for Bombay high court and later for Supreme Court. He graciously refused both times.

Indira Gandhi had appointed him additional solicitor general. But true to form and character, he resigned a day after Emergency was proclaimed on June 25, 1975. In his autobiography, Before Memory Fades, Nariman said the key lesson from that period was that constitutional functionaries including Supreme Court judges can abdicate their duty to protect the Constitution and fundamental rights. “It was judicial pusillanimity at its worst,” Nariman wrote.

Two PMs offered Nariman the post of attorney general — Deve Gowda in July 1996 and Atal Bihari Vajpayee in March 1998. He politely declined both times. He recalled in his autobiography that “apart from not wanting to be part of a BJP-led govt, the trauma of resigning in protest as a law officer for the second time dissuaded me from saying yes”.

His principles and values defined his legal journey. He was representing Gujarat govt on Narmada rehabilitation, but returned the brief in protest after attacks on Christians in the state. He was part of landmark cases decided in the apex court — Sankari Prasad Singh Deo, Kesavananda Bharati, I C Golaknath, Minerva Mills, TMA Pai, the second judges case in which the collegium system was evolved, Bhopal Gas tragedy case, and NJAC among others.

Interestingly, he regretted winning the second judges case. The collegium system has failed, he thought, and he became the strongest critic of it. “I do not see what is so special about the first five judges of Supreme Court. They are only the first five in seniority of appointment — not necessarily in superiority of wisdom or competence… I would suggest that the closed-circuit network of five judges should be disbanded,” he said.

Nariman said that it was not that good judges were not appointed or are not appointed but sometimes better candidates are overlooked or ignored under the system.

A Parsi and therefore a member of a tiny minority community, Nariman used to say for the longest time he never felt he was a minority. But in later years, he felt India was changing. “My greatest regret in a long, happy, interesting life is the intolerance that has crept into our society. For centuries, Hinduism had been the most tolerant of all religions. But over the past few years, I have been a reluctant spectator of a new phenomenon. The Hindu tradition of tolerance is under immense strain — the strain of religious tension fanned by fanaticism. This great orchestra of different languages and praying of different Gods — that we profoundly call India — is now seen and heard playing out of tune,” he had written in his autobiography.

Nariman had signed off his autobiography saying, “I have lived and flourished in a secular India. In the fullness of time if God wills, I would like to die in a secular India.”

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