‘Watch out for authoritarian govts. There is little danger to our liberties now as govts are weak’
Born in 1929 in Rangoon, Fali S Nariman studied Law at Xavier’s College and then Government College Bombay. He went on to practise law at the Supreme Court and is one of India’s most respected jurists as well as a member of the London Court of international Arbitration since 1988. In November 1999, he was nominated to the Rajya Sabha. He is known for his many landmark interventions in the House. His book, India’s Legal System, was released this week. His wife, Bapsi F Nariman, and he joined The Indian Express team for tea the day after the release of the book, and he spoke on several aspects of the law and contemporary politics.He also spoke of his training at the firm of the illustrious Jamshedji Kanga, where several of them worked in the same room. He said he learnt to focus despite the noise and chaos in the little chamber. ‘‘It was foolish to expect perfect silence in a country of India’s size and character,’’ he said. Excerpts:
SHEKHAR GUPTA: Why don’t you begin by telling us a little more about the Emergency, its impact on the Constitution, law etc?
In retrospect, I think the Emergency was good for us all. It inoculated us, made us see it for what it was. It was a shock to the system. You don’t realise oxygen’s worth until it’s turned off.
I was supposed to be the blue-eyed boy of Law Minister Gokhale who specially created the post of Additional Solicitor General for me in 1972 and called me to Delhi from Bombay. Many were furious. In May-June 1975 I and Lal Narayan Sinha both became solicitor generals. Then of course Indira Gandhi lost the election case. For some reason she asked me to settle her appeal in the Supreme Court. It was drafted by Nani Palkhiwala. The Allahabad HC had done an extraordinary thing in preventing the prime minister from speaking or voting in Parliament. He had virtually disenfranchised her.
The appeal came up for hearing before V K Krishna Iyer. It was a vacation bench and he was the only one there. I always tell Iyer he started the Emergency. Iyer decided the case on precedents. There was nothing wrong with that. But Indira was shocked. Palkhiwala then wrote that famous letter to Indira that I can’t appear for you any more. Resignation is a truamatic business. I sent my resignation letter but it was suppressed. I remember when all the Opposition was in jail, Chandra Shekhar was the only one in Parliament who kept voting against the government. He was a very brave man, I have great regard from him.
I had appeared for the government against Bennett Coleman in the famous newsprint case, and lost. I resigned because I thought why should I keep defending the government…I believe Mrs Gandhi was very surprised that more people did not resign in protest. She expected many more to quit!
I appeared in the Golakhnath case along with Palkhiwala and Ashok Sen, who was a junior, which was about whether fundamental rights could be amended. It came before 11 judges. The great Subba Rao presided in that case. By a 6-5 majority it was ruled that fundamental rights could not be amended, and it was decided to reconsider all previous Constitution bench judgements which held otherwise. A lawyer called R V S Mani from Nagpur had filed the petition. We wanted Nambial —- Venugopal’s father — to begin the argument but Mani insisted he would begin. He began by saying My Lord, my first proposition is…Then he said My Lord, my second proposition is…Then My third proposition is…and the judges were writing it all down until Justice Shah lost his cool, threw his pen and said ‘Give it all in writing’. That was the origin of written arguments in the Supreme Court.
The judgement was seen as favouring big property. That at the bottom it was for a large compensation for abolition of zamindari. So Parliament further amended the Constitution, and now a 13-member bench sat down to consider them.
Everyone felt something should be done about the Parliament majority. Justice H R Khanna argued there was something basic about the Constitutional structure, that there was something like the founding fathers’ idea of the Constitution which could not be amended. It was decided by 7-6 that the Constitutional structure had to be preserved.
One has to remember that at the time there was a 2/3rd majority in place in Parliament, and it looked it will stay that way for ever. The judges then were not elected by a collegium of judges, but by the Law Minister. Something had to be done to check Parliament’s unbridled majority.
We used to only think of rights…The Directive Principles were neglected, when they are the heart of the Constitution. The 7 to 6 judgement was the first fetter put on the constitutive power of Parliament. The lawmakers couldn’t stomach it. But the judges of yesteryear were very strong men. They never got cowed down.
Judges still have an enormous role to play but we have to watch out for authoritarian governments…Though right now, the possibility of losing our liberties is at a minimum because governments are not strong enough. I like confrontation between courts and government, certainly. Today, we have very firmly in place the basic structure of the Constitution. It is part of our constitutional history. It’s a great contribution of the judiciary. Look at the Bihar judgement recently. It is an example of upholding the Constitution.
PAMELA PHILIPOSE: The Law of Contempt greatly restricts healthy criticism of the judiciary, don’t you think?
I tell judges to have press releases ready to publicly clarify their position if they ever come under allegations. The first denial must come promptly. But the latest Law Commision report looks a very dangerous one. It talks about trial by media, which I’m not sure is a bad thing. Look at the Jessica Lal case. The press has played a fantastic role since the Emergency. The ‘truth’ as defence is hardly any defence. You would never be able to prove it. I’m sure judicial reforms will come in time. You have to make a bit more noise. Don’t worry about contempt. Especially after the Arundhati Roy case everyone’s steeled to ask questions of the judiciary. What’s wrong with asking questions? You can question anybody.
SEEMA CHISHTI: How do you see the recent debate between the judiciary and Parliament on reservations?
This is a very vexed issue. There is a widespread feeling of oppression, and of continuing to be oppressed, among judges as well. A Parsi chief justice who had come from Bombay was very surprised to find that very legitimate claims of judges had been overlooked just because they came from a certain ‘class’ — that’s the term he used. Former law minister P Shiv Shankar, a Dalit, told me that as policy, in some states, if two justices have to be sworn in on the same day, the guy from the preferred community is sworn in first, so that the guy from the non-preferred community doesn’t supersede him in becoming chief justice. Who decides merit after all? I don’t know how it gets decided. I tell industrialists reservations are going to come if you don’t do something about it. Our disparities are enormous and are growing. Venezuela and other Latin American countries are facing the same situation, but we are not doing anything about it.
I think B P Mandal has played a bad role in the sense that consciousness of identity has grown to chauvinism. The proposed reservation for Muslims is absurd. The only ones that don’t have any reservation are the Parsis. Perhaps we are over-represented already!
Ajay S Shankar: What do you think about PILs? Are they being misused?
PILs are definitely being misused but they are a good thing. The courts have realised that they need to control them. There must be a screening process. A PIL can finish off a whole thing, a dam for example. And nothing happens if it’s lost. A PIL was meant for those who didn’t have the wherewithal to approach courts. Now there are corporate PILs. There is an NGO called Centre for Public Interest Litigation which is contrary to the PIL’s spirit. It should not be institutionalised.
If you are interested in governance you have to vote for the right government. I agree that governance has broken down but it is not the court’s business to govern.
ABHAY MISHRA: What is being done to take justice to poor rural Indians?
The British used to have a very good system of travelling courts. I mentioned this to the Prime Minister on Thursday…Judges today have to compulsorily retire at 65. Most judges are eager to continue working, they are not interested in arbitration and so on. And they are basically honourable. You must remember the system is sustained by the public. They wouldn’t do it if they felt the judiciary to be corrupt. Retired judges should be allowed to continue hearing cases, and they should be allowed to hear them outside the court premises as well. This legal reform doesn’t require any new law. And we should have a bench of the Supreme Court in the North-East, definitely. It is not only about saving costs but lessening the feeling of neglect prevalent in the region.