Fali Nariman Laments at the Supreme Court: Why?


By: Parmanand Pandey, Advocate, Supreme Court (Secretary General IPC)

The new book of Fali S. Nariman ‘God Save the Hon’ble Supreme Court’, is full of lively anecdotes and tit-bits that make it a good reading but those who expect to get any philosophy, jurisprudence and guidance – ‘what ought to be in the field of law’ – would be highly disappointed. F.S. Nariman has seven decades of standing in the legal profession and for more than five decades he has been practising only in the Supreme Court. He has been on the zenith of the profession for many decades and is held in high esteem by the bench and bar alike. Whatever he says inside or even outside the court is heard with rapt attention.

The title of the book suggests that he is not satisfied with the goings-on in the Supreme Court and therefore he prays to save the Hon’ble Supreme Court but one fails to understand why a person of Nariman’s stature has not taken any firm stand or cudgels to remove Augean stable, which has set in the Court of late? The first chapter deals with mainly the internal rivalry, squabbles and one one-upmanship of the Judges. He has very meekly expressed his displeasure over the public expression of dissatisfaction of the four senior Judges in January of 2018. He appears to be against the Public Interest Litigations, which bespeaks of the mental makeup of most of the established lawyers, who never want the hornet’s nest to be disturbed. He has mostly taken up cases of corporate houses. He has discussed some cases, in brief, which partly present one side of the Supreme Court. Those cases are: ‘Jindal Stainless Steel vs the State of Haryana’, ‘Aviram Singh vs C.D. Gomachand’, ‘Krishna Kumar Singh vs the State of Bihar’, ‘Shayara Bano vs Union of India’ also known as Triple Talaq Case, ‘Justice Puttaswami vs Union of India’, ‘National Insurance Company vs Pranay Sethi’, ‘Common Cause vs Union of India’, and ‘State of Jharkhand vs Hindustan Construction Company’. He says that these are the best cases which have been decided by the Supreme Court in recent times but many cases like that of Justice C.S. Karnan of the Calcutta High Court (his parent High Court was the Madras Hgh Court) has put a bad light on the state of affairs of Supreme Court.

Fali S. Nariman as an Advocate has never been very combative in the courtrooms, always very courteous and a stickler to the decorum and that is what he expects from the youngsters as the fascinating future of law belongs to them. He belongs to the old school of Bhadra Lok genre of Advocates, who hardly raised their voice even against those Judges who are rude and discourteous in the Courts. It will not be out of place to mention here that the Supreme Court before 1970 was a highly retrogressive forum of justice, no progressive judgements were delivered by it, be it the case of Privy Purses, Bank Nationalisation or Land Reforms , all of them were passed by the Parliament but they were set aside by the Supreme Court.

The Supreme Court instead of supporting the cause of the poor, downtrodden and deprived sections of the society, adopted the approach of elitism, to the disgust of the common people of India. Surprise of all surprises is the fulsome support that those judgements got from the towering Fali S. Nariman. There is a ‘Stephanion School of Lawyers’ in the Supreme Court, who never think big and innovative as they suffer from the subaltern mentality. They are the biggest stumbling blocks in changing the character of the judiciary, legislatures or the executive. Stephanion does not mean those who have come out from the Stephens’ College, but it is a metaphor which connotes and signifies the elitist culture. Such people never stand in favour of teeming and toiling masses but believe in the status quoism of comfort living persons.

He has discussed the role of the Judges, Lawyers and Parliamentarians and has waxed eloquent about the ‘basic structure’ of the Constitution as propounded in the Keshvanand Bharti case, way back in 1973. As a matter of fact, it is the considered opinion of this reviewer that the theory of ‘basic structure’ is a big hoax. In the name of the basic structure, the Supreme Court has substantially throttled the wishes and aspirations of the people. It has put shackles and fetters on the desires of the people, who are held by the democracy world over to be sovereign. Needless to say, that it is the Parliament which represents the desires and ambitions of the people and the ‘doctrine of basic structure’ amounts to the usurpation by the Supreme Court of the sovereign rights of the Indian people as spoken by them in Legislature.

The doctrine of ‘basic structure’ also rebels against the commonsense. It is universally accepted fact that in any society ‘the change is the way of life’ and to give effect to this truth the people in their wisdom in every democracy, while making their Constitution, have always incorporated therein a provision to amend that Constitution. In constitutional jurisprudence, a Constitution is held to be an organic instrument, which grows in tune with changing times. Any fetter on this growth – be it in the name of ‘basic structure’ – is against the commonsense because, firstly, it encroaches upon the people’s sovereignty of the ‘present generation’; secondly, this doctrine takes a decision on behalf of ‘future generations’ of sovereign people and binds them with that decision ‘forever’ – till eternity; and, thirdly, it leaves for those sovereign people no peaceful or legal means to accomplish their will but forces them to resort to an extra-constitutional – or violent – path to achieve that object.

He has devoted a chapter on the freedom of speech and expression, wherein he has certainly praised the role played by the media in certain spheres, but he has, at the same time, glossed over the corruption prevailing in the media itself. He has not written a word against the exploitative media houses. He has quoted three important cases which are four to five decades old namely; ‘E.P. Raiappa vs the State of Tamilnadu’, ‘Ajay Hasia’, ‘State of West Bengal vs Anwar Ali Sarkar’ and ‘Kathi Rani Rawat vs the State of Saurashtra’, which are of the vintage value but much has changed since then. It is very strange that in the name of ‘equality before the law’ as enshrined in article 14 of the Constitution, Fali S. Nariman stands behind such people who have made the Supreme Court the handmaiden of the corporate houses and the thugs of the country, who have cheated the people behind the veneer of subtle sophistication.

His compendious autobiography ‘Before Memory Fades-An Autobiography’, was certainly a delightful reading but the present book does not, in any manner whatsoever, throws any light on the changing scope of the law and the advocacy. There have been only a few judges who have certainly brought laurels to the Supreme Court and among them were Justice V. R. Krishna Iyer, Justice Bhagwati (except, of course, his disgraceful judgement on the ADM Jabalpur case), Justice D.A. Desai. Justice A.N. Ray (Yes! the same Justice A.N. Ray, who superseded the senior-most judges of the Supreme Court and became the Chief Justice of India, his sterling role in Keshvanand Bharti case and Bank Nationalisation case speaks about the sparks of his progressive thinking to convert the judiciary into the vehicle of the transformation of the society). Alas! however, he was a much-maligned judge because of his opposition to the retrogressive judiciary.

There is also a chapter on Minorities at the Crossroads, in which he has unnecessarily shed tears on the rights of the minorities. Instead of prodding and encouraging them to be the part of the mainstream, he has praised for the protection of their cloistered virtue. The education and economic upliftment of the minorities are more important than anything else but strangely; he has not spoken anything against the Christian missionaries, who have been driving a wedge between the Christians and non-Christians by opening the schools and colleges only for themselves in defiance to the provisions of the equality before the law. It is highly shocking that the Kerala Education Bill, which was introduced by E M.S. Namboodiripad in 1958, which wanted to bring parity in the educational standards has been upbraided by F.S. Nariman in his book.

He has paid a very moving tribute to V.R. Krishna Iyer and an Advocate of Lucknow R.N. Trivedi, he deserves kudos for glowingly remembering the stalwarts. The book has been written in the fashion of storytelling in elegant English. Unfortunately, even after seventy years of the existence of the Supreme Court, those who speak crisp and highly accented English command high premium in the advocacy. Surprisingly, the legal luminary like Fali S. Nariman has not discussed the desirability of the NJAC (National Judicial Appointment Commission), because today what we find is the highly ‘incestuous system of appointment of judges’ in the Higher Judiciary.

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