T.M.A.PAI FOUNDATION, 2002 FALI S NARIMAN marks six decades as the Constitution’s conscience-keeper
“TRADITION has it”, Justice William Brennan of the US Supreme Court famously said, “that law is not made by judge alone, but by judge and company.” Adjudication at the highest court is indeed a partnership between the Bench and the Bar. Nobody epitomises this partnership more than the contribution of Fali Sam Nariman to the rulings of the Supreme Court.
Nariman first appeared on the national scene in Golaknath’s case alongwithNaniPalkhivala.Afterbeing appointed Additional Solicitor General in 1971, he represented the government on major Constitutional issues. He was set to become the Solicitor General, but destiny willed otherwise. Emergency was imposed and he resigned from office–the only public official to resign his post in protest of the Emergency. Years later he wished that he were the Attorney General so that his resignation would have created a greater impact! He argued several leading cases before the Supreme Court involving fundamental rights. He defended the right of press in The Indian Express case where the Supreme Court struck down the order of the Delhi government threatening to demolish The Express buildings as violative of the Constitutional right of free press. He defended the Constitutionally guaranteed right of the minorities in several leading cases culminating in the T.M.A.Pai Case. But his greatest contribution lies in protecting the independence of the court and the integrity of the judicial process.
He was the lead lawyer in the Second Judges case where the judiciary took over the right to appoint judges, securing the power of judicial review over legislations specifically exempted from judicial review by Parliament (Ninth Schedule Case), championing the cause of the subordinate judiciary for a better pay and terms of service. (All India Judges Association case) Working with him, I saw that he was thinking about the brief even after the briefing was over. His mind would penetrate to the deepest aspectofacaseandexpressitinamannerthat wouldsoundvery obviousto the judge.
Being a private practitioner enabledhimtotakepositionsandcases which were at odds with that of the establishment; he rejected the office of the Attorney General several times. Although the NDA governmentnominatedhimasRajyaSabha member, it did not stop him from criticisingthegovernmentonminority rights or successfully challenging the divestment of oil firms, a major policy decision, in the Supreme Court. He returned the brief for the Gujarat government in the Narmadawaterdispute,whentheChristian minority complained of attacks.
Nariman’scontributionswerenot confined to the courtroom. Many a time the institution of an independent judiciary has to be protected from attacks by the legislature and the executive, but sometimes it also has to be protected from the judges themselves. His personality and a lively pen enabled him to ask judges to exercise restraint in exercising theircontemptjurisdictionandmore forthcoming on issues on judicial accountability. Assisting him on a case, I recall Chief Justice Patnaik complaining to Nariman (who was appearing before the Chief Justice) about the enormous workload and how judges of other supreme courts do not have to bear similar burden.
Prompt came the reply– “it just shows the confidence of the citizens in this Court!” In a career as long as that of the Constitution and the Supreme Court, it was this confidence which Nariman strove to live up to.
Vivek Reddy was a junior to Fali Nariman, and is currently an advocate in the AP High Court
T.M.A.Pai Foundation v. State of Karnataka, deciding by an 11-judge bench of the Supreme Court in 2002
The scope of governmental regulation in unaided educational institutions was curtailed. The court held that the state cannot interfere if the admission was on merit and a reasonable fee was being charged. However, minority educational institutions receiving aid from the state would have to admit a reasonable number of students from non-minority groups.
The case has changed the legal landscape for higher education. Unaided Professional Educational institutions became more autonomous. Educational institutions started their own entrance examinations. Based on this, the Supreme Court in the Inamdar case held that reservation is private institutions is unConstitutional. Parliament passed a Constitutional amendment to overcome this. The validity of this amendment is yet to be decided upon.