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Nariman point Before Memory Fades:
An Autobiography
No country is perhaps as lucky as India in having a galaxy of legal luminaries. If C.K. Daphtary, H.M. Seervai and Nani A. Palkhivala were all jurists par excellence in their lifetime, Fali S. Nariman is no less. He has proven his legal acumen and scholarship over the past four decades. Nariman is widely respected in India and abroad. Significantly, he has some striking similarities with Palkhivala (who passed away in December, 2002). Both had fought against the injustices in the system. Both opposed dictatorship, legislative tyranny and executive arbitrariness. And both championed the cause of constitutional dharma, independence of the judiciary and supremacy of the rule of law. Nariman appeared in the Golaknath case (1967) along with Palkhivala and Ashok Sen, which was about whether the Fundamental Rights could be amended. It came before 11 judges. Chief Justice Subba Rao presided in that case. By a 6-5 majority, it was ruled that the Fundamental Rights could not be amended, and it was decided to reconsider all previous Constitution Bench judgments that held otherwise. A lawyer called R.V.S. Mani from Nagpur had filed the petition. Nariman and Palkhivala wanted Nambiar to begin the argument, but Mani insisted he would do so. He began by saying, "My Lord, my first proposition is`85" Then he said, "My Lord, my second proposition is`85" Then, "My third proposition is`85" and the judges were writing it all down until Justice Shah lost his cool. He threw his pen and said, "Give it all in writing." That was the origin of written arguments in the Supreme Court. The judgment was seen as favouring big property. At the bottom of it was a large compensation for the abolition of zamindari. Consequently, Parliament further amended the Constitution. And now a 13-member Bench sat down to consider this. Justice H.R. Khanna argued there was something basic about the constitutional structure and that the founding fathers’ idea of the Constitution could not be amended. It was decided by 7-6 that the constitutional structure had to be preserved. It is important to point out that as the government enjoyed a two-thirds majority in Parliament then, there was a general impression that the amendment would stay. But the 7 to 6 judgment was the "first fetter" put on Parliament’s constituent power. The lawmakers couldn’t stomach it, but the judges of yesteryear were very strong men. They never got cowed down. Interestingly, these judges, who were appointed not by the collegium of judges at that time but by the Union Law Minister, were convinced of the need to check Parliament’s unbridled majority. In 1981, in S.P. Gupta’s case (or the First Judges’ case), when a seven-Judge Bench of the Supreme Court ruled, by a narrow majority of 4:3, that the Chief Justice of India’s recommendation in the matter of the judges’ appointment to the higher judiciary was not constitutionally binding on the Government of India, Nariman called it "a disaster of judicial independence". The majority decision may have been "constitutionally correct", but was not in accordance with "constitutional convention", he said. This judgment not only enabled successive governments to "manipulate" appointments but also created a "rift" in the echelons of the higher judiciary. Ironically, Justice P.N. Bhagwati, who delivered the majority judgment in the First Judges’ case and later became the CJI in July 1985, himself became a victim of his ruling. When he recommended some deserving names for appointment as judges in high courts, the government, drawing a leaf from his ruling, peremptorily rejected them. In the Second Judges’ case (1993), the majority (7:2) overruled the ruling in the First Judges’ case and called it "erroneous". Interestingly, Nariman had led the main argument on behalf of the petitioner, SC Advocates-on-Record Association. He was assisted by the then Advocate-on-Record Mukul Mudgal (who later became the Delhi High Court Judge and is now the Chief Justice of the Punjab and Haryana High Court). As the then CJI Justice A.N. Ray resorted to "punitive transfers" of high court judges having political overtones, the nine-member Bench introduced the collegium system for choosing judges. It evolved a new doctrine, implying that the primacy would mean not only the CJI’s opinion, but also the views of two other senior Judges in the collegium. The ruling in the Third Judges’ case (1998) enhanced the collegium strength from three to five senior-most judges, but it has not helped streamline the system of selecting judges. Increasing cases of corruption and misuse of power by judges in recent times have exposed the drawbacks of the collegium system. Nariman laments that though many worthy persons have been selected as judges over the years, many deserving ones have been ignored. There is no institutionalised system for making recommendations; no database or referral record of high court judges who are considered suitable for appointment to the Supreme Court. He calls the collegium as a "closed-circuit network of five judges" and wants it to be disbanded. As these judges consult no one but themselves, he wants the selection process to be institutionalised with far more inputs from outside to ensure greater transparency. Judges must be appointed only after a "broad consensus" from amongst all Supreme Court judges and whosoever else the CJI deems it appropriate to consult, he says. He lauds the proposal for the National Judicial Commission as "excellent" but wonders why Parliament has not followed it up. The book is brilliantly planned and beautifully designed. The 18 chapters, laced with quotations, anecdotes and series of vignettes of his and his colleagues in the Bar, in Parliament (the writer was a nominated MP, Rajya Sabha) and elsewhere, provide a glimpse of his jurisprudential wisdom. Advocates and students of law will particularly like the chapter, ‘Lessons in the School of Hard Knocks,’ in which the writer spells out 28 essential attributes for a "lawyer in actual practice". It is a must not only for
judges, advocates, students of law and political science, but also for
editors, people’s representatives, administrators, academics and all
those who believe in the sanctity of constitutional values, the majesty
of law and, above all, independence of the judiciary.
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