I saw in the news recently that Fali Nariman has passed away. I felt sad when I heard the news. Fali Nariman was one of the great lawyers from India. He spent a significant part of his career working as a lawyer at the Supreme Court. He is one of the last of the greats – someone who was born before Indian independence, who started his law career at around the same time India became a republic, who has seen in close quarters most of the big happenings in the country from a legal, constitutional perspective and who has been part of those happenings. He is also from the time when lawyers were well read and very articulate – Nariman quotes from Shakespeare and Chesterton and Matthew Arnold and James Barrie and Omar Khayyam and other classic writers in his book.
This book, his autobiography, came out in 2010. I got it at that time. But for some reason I couldn’t read it till now. I didn’t know why I had to wait for the man to die before reading his book. I feel ashamed.
In his book, Nariman describes his childhood in Burma and how his family moved back to India when the Japanese invaded Burma. He also describes his schooling in Shimla and his favourite teachers there, briefly touches on his college life in Bombay, and later tells us how he became a lawyer. Then we get to know more about his work, about the fascinating people he met, and the interesting experiences he had.
The book starts in chronological fashion, but after sometime it becomes topical, and each chapter feels independent and is about a particular topic. One is about the Emergency, another is about his favourite judges, some are on legal topics like how water sharing disputes among states are handled in India, how judges to the Supreme Court are appointed. There is one big chapter dedicated to his role as a lawyer in the case related to the Bhopal gas tragedy. The autobiographical, anecdotal parts of the book are easy to read. The chapters in which Nariman talks about the law are harder. The level of difficulty is between an article meant for the general audience and a legal brief. A lawyer will find those chapters easy to understand, but a general reader will find them challenging. But it is possible to get through this by careful reading, looking at those sections of the Constitution and reading articles on the relevant judgements, most of which are probably available online. Those chapters cannot be read like a regular book, but need more closer reading like a textbook.
My favourite parts of the book were about his childhood and other personal chapters at the beginning of the book, and the parts of the book about his favourite lawyers and his favourite judges and the chapter in which he talks about the Emergency and Constitutional amendments. Nariman asks an important question in that part – how much Constitutional amendment is allowed and is it possible for a government to amend away the whole Constitution including suspending things like fundamental rights? Is there something called the basic structure of the Constitution which cannot be touched or is everything open to amendment and change? It is an important question, it is a fascinating question, and Nariman spends considerable amount of time on it.
My least favourite part of the book was the one on the Bhopal gas tragedy. In the case related to this, Nariman represented Union Carbide, the company which was responsible for the tragedy, in the court. I expected that he’d explain what happened in that case from his perspective, why he took it up and how he defended it, and whether he had any moral compunctions in doing that, as he was working against the victims here. But, unfortunately, Nariman resorts to legalese here, and reproduces a long article which he wrote on this topic, in which everything is vague and obtuse and hard to understand. If we show enough patience and are able to wade through the legalese, we can get to what he is saying, but whatever he is saying doesn’t answer any questions. It is frustrating to read that chapter because it is such a stark contrast to the rest of the book, which is crystal clear. Representing Union Carbide in that case was a black spot in Nariman’s career. But it was a distinguished career in which he did many good things and fought the good fight many times, and so what is the fun in a long distinguished career if there isn’t a big bad blackspot somewhere? This was his. My only disappointment was that he didn’t own up to it.
I loved reading Nariman’s book. Parts of it were easy to read and flowed smoothly, while other parts were challenging to read. I’m glad I read it, though it took me many years to get to it.
Fali Nariman inspired generations of lawyers and judges. He was active in his work till the end. He even published a big book on the Indian Constitution last year, when he was 94. His passing is a big loss to the legal fraternity and to his well-wishers everywhere. But Nariman lived a long life, a good life, a rich life, in which he did many amazing beautiful things. It is time to celebrate that. Nariman ends his book with these lines –
“I belong to a minority community, a microscopic, wholly insignificant minority, which spurned the offer made (at the time of the drafting of our Constitution) – to Anglo-Indians and Parsis alike – to have, for at least a decade, one special representative in Parliament. We rejected the offer. In the Constituent Assembly, Sir Homi Mody said that we Parsis would rather join the mainstream of a free India. We did, and we have no regrets. We have made good, just as my mother’s ancestors (the Burjorjees of Calicut) – two centuries ago – made good in Burma.
I have never felt that I lived in this country at the sufferance of the majority. I have been brought up to think and feel that the minorities, together with the majority community, are integral parts of India.
I have lived and flourished in a secular India. In the fullness of time if God wills, I would also like to die in a secular India.”
It touched me somewhere deep in my heart when I read that.
Here are a couple of articles on Fali Nariman.
Sharing some of my favourite parts from the book.
Quote 1
“…the writ of habeas corpus which was granted by each one of the nine high courts in the country was denied by the highest court. The judgments of the high courts of India which took the contrary, more liberal view, were declared erroneous, and set aside by the apex court. By denying habeas corpus, the Supreme Court had set back the clock of liberty, proclaiming its helplessness against arbitrary arrests and malafide detentions. It was judicial pusillanimity at its worst!
The lone dissent was that of the seniormost judge in the Supreme Court (next only to Chief Justice Ray), Justice H. R. Khanna, who refused to rationalize tyranny. He would not bow down to insolent might. ‘Life and liberty are not conferred by any Constitution’ he said, ‘they inhere in men and women as human beings.’ But Khanna was in a minority – a brave minority of one. Historians of the Supreme Court will doubtless record that it was only in the post-Emergency period (not during the Internal Emergency of June 1975 March 1977) that the highest court gave vent to expressions of grave concern about violations of human rights! A sobering thought for human rights activists – and for judges and lawyers.
In a book titled ‘Six Men’, Alistair Cooke, eminent broadcaster and says of the late Duke of Windsor (for a few months King Edward VIII before he finally abdicated), ‘He was always at his best when the going was good.’ It was when the going was rough (while the Emergency of June 1975 lasted) that a few of our judges (alas, too few!) were at their best. One of them (and the most notable of them) was H. R. Khanna, with his lone dissent in the infamous Emergency Case (ADM Jabalpur). He showed what a brave judge could do. “The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.” Khanna knew, when he signed his dissenting judgment, that he was signing away his future chief justiceship – which was only a few months hence. Khanna was No. 2 on the court (seniority-wise), and (other things being equal) would have become the chief justice of India on the retirement of Chief Justice Ray on 28 January 1977. Inexorably, when the time came, ‘other things’ were not considered equal (by the government of the day). Khanna was ‘superseded. Justice M. H. Beg (No. 3) was appointed the chief justrice of India. Khanna resigned – but in a blaze of glory! It is for good reason that Khanna’s portrait (though not a very good likeness of him) hangs in the court where he sat – Court No. 2.
Jean Monet, father of the European Union, once said that the world is divided into two types of people – ‘those who want to be somebody and those who want to do something.’ Khanna is remembered, and will always be remembered, long after many chief justices of India are forgotten, because he did something for which he deserved to be remembered.
One of the lessons of the Internal Emergency (of June 1975) was not to rely on constitutional functionaries. These functionaries failed us – ministers of government, members of Parliament, judges of the Supreme Court, even the president of India.”
Quote 2
“But a written constitution safeguarding the rights of citizens does not add up to very much – they are just words. When the historian, Edward Gibbon, completed the first volume of his classic, The Decline and Fall of the Roman Empire, he was permitted to present it to the Duke of Gloucester, brother of King George III. He was well received. When, a few years later, he presented the second volume of almost equal length, the prince received the author with considerable affability, saying to him, as he laid the heavy volume on the table, ‘Another damned, thick, square book! Always scribble, scribble, scribble! Eh! Mr Gibbon?’ Not only academicians and politicians but a good many intellectuals around the world have harboured similar sentiments about the proliferation of documentation in the area of human rights – declarations, conventions, resolutions, treaties… Words, words, words … The United Nations (UN) is long on instruments relating to human rights (they say), but its member states are significantly short on performance. Universalization of human rights may well have been achieved, but only on paper. Effective implementation is lacking. There is much truth in this criticism. Sovereign nation states often impede the quest for universalization. What governments profess (around the world) and what they practise (within the state) hardly ever coincides. The most important single factor in the implementation of human rights is not documentation, but the spirit of the people.”
Quote 3
“I was privileged to appear before Justice M. Hidayatullah when he presided on the bench of the Supreme Court as chief justice of India from February 1968 to December 1970. He was erudite, but carried his learning lightly. Always charming and courteous to the Bar, he had a flair for the appropriate turn of phrase (the French call it, le mot juste). But it was not only in his judgments that he was eloquent. His brief but precise introduction to the sixteenth edition of Mulla’s classic work on Mohammedan Law is a piece of writing unmatched in India’s legal annals.
His extrajudicial utterances were not without humour. His description of the three great organs of state: the executive, the legislative and the judiciary – will be long remembered for the barbed innuendos. About the proliferation of bureaucrats in the government, he adapted an old nursery rhyme to produce what he described as ‘a poem of truth’ :
“One civil servant with nothing much to do
Wrote a Memorandum and there were two,
Two civil servants over cups of tea
Formed a working party, and there were three
Three civil servants drafting forms galore,
One whispered ‘Planning’ and then there were four
Four civil servants found they could not thrive
Without coordination, and then there were five.”
And so it went on to the last lines which were :
“Nine civil servants very busy men,
Just ask them what they find to do.
You’ll find they have grown to ten.”
About Parliament, his observation was that only a handful of people really took seriously to the task of law making. Others were silent spectators, which (he said) was not a bad thing, because a legislature which said nothing and did much was to be preferred to one where members talked too much and did nothing! And as for the judiciary he believed that in writing judgments, judges should not pontificate or indulge in grandiloquence. Quoting Dr Johnson he pointedly compared ‘certain writings’ to a meal which is ‘ill-killed, ill-dressed, ill-cooked and ill-served’, an apt description of judicial opinions that are badly written! Haddi, as he was popularly known, loved quoting Samuel Johnson. Even his scintillating autobiography is titled ‘My Own Boswell’. It does one good to remember a judge as eloquent and as distinguished as Hidayatullah.
His lasting memorial for posterity is the judgments he has left behind. After 59 years at the Bar, I am convinced that the finest epitaph for a judge is, ‘He never wrote bad judgments – only elegant ones, eminently readable by one and all!’ A fitting epitaph for dear Haddi.
Quote 4
“At this ripe old age (besides the family and staff) what sustains me are two things. First (and frankly), the possibility and the thrill (even now) of winning a difficult case (‘The race is over, but the work is never done while the power to work remains!’). And second, the affection of all my colleagues at the Bar (young and old) whose company I greatly value and enjoy, so much so that a couple of years after being allotted (by the chief justice of India) a small chamber in the building on the road opposite the Supreme Court (after I kept it for a few months), I surrendered it because I did not find it of use. I did not like sitting alone in my chamber waiting for my (fewer and fewer) cases to come up in court. At 80 plus, it is better to sit in court, and listen and learn (as Sir Jamshedji used to say) or sit in the lounge and talk to friends (old and new) at the Bar.
At this age, one does not – one should not – think of one’s professional future.
A few months ago, I addressed an international seminar in New York and was introduced to the audience by a ‘friend’ who said (with a wink and tongue in cheek) that ‘Mr Nariman is also President of the Bar Association of India almost since the time of the Norman Conquest’; a gentle hint, perhaps, that I retire from official positions (and active practice). Well, who knows, someday I might. But as advised at present, I propose to die with my boots on!”
Have you read Nariman’s book? What do you think about it?
Defending Union Carbide in the Bhopal disaster is a pretty significant black spot. It is clearly a serious lost opportunity that he doesn’t cover that decision in other than legalese, if that is the case. It must have been demanding to read this from start to finish, but I imagine you learned a great deal. Respect for that!
Yes, it is very sad, Jenny. But he did many other good things, and hopefully the balance is on the good side. I read somewhere that he later regretted appearing for Union Carbide, but it doesn’t come through in the book. Yes, the book was demanding in some ways, especially the parts about the law, but I’m glad I read it. Thank you for your kind words 😊
I am hearing you, Vishy. You will feel that particular industrial scale disaster more even than I do. Lawyers doing their job step up in these situations by profession, and I am sure that his role was complicated, having to look at all the angles. I am glad to know that he also did a great deal of good for humanity. Also that he had some real regret. We are human at the end of the day.
Thanks for sharing your thoughts, Jenny. Made me think a lot. Very true what you said, that we are human at the end of the day.
An insightful read. Autobiographies are risky in general. You never know what is going to be the experience. I recommend highly of the another one, the autobiography of India’s senior-most ecologist, Mr Madhav Gadgil. The name is ‘A Walk up the Hill: Living with People and Nature’ published by Allen Lane.
Thank you for the recommendation. I remember Ramachandra Guha raving about Madhav Gadgil. Will add this book to my list and will try to read it one of these days.