Fali S Nariman passed away in the early hours of February 21, 2024. Very few lawyers in this country, like him, have enriched the Court with their forensic skills and their moral stature. The corridors of the Court will never be the same with Fali having gone away.
Fali was a man of many parts—-a chiseled mind, daunting opponent and a skillful wordsmith whose presence one felt the moment he walked into Court. When he stood up, there was silence, when he spoke, Judges listened with rapt attention. One could disagree with him, but one never stopped admiring him. He was a professional to the core with the innate ability to persuade even a hostile bench to listen and ponder. His greatest attribute was his ability to stand up and be counted. He was unafraid to speak his mind.
His passion for the independence of the judiciary was evident in his leading the charge when the Supreme Court quashed the National Judicial Appointments Commission. He was at the forefront in the Advocates on Records Association case which led to the collegium system. Since then the court apparently decides on all appointments to the higher judiciary. Though the collegium system has become highly controversial, yet the sentiment which led to the judgment was to take away executive fiat in the manner of appointment of judges to the higher judiciary. He was a party to several seminal judgments including TMA Pai which sought to delineate minority rights in the functioning of educational institutions.
Having been appointed as Additional Solicitor General of India in May, 1972, his stint as law officer was short lived. Upon the declaration of emergency in June 25, 1975, he did not hesitate to quit as law officer the very next day knowing that he may land up in Jail, given the environment at the time. This was perhaps an act of valour which sets him apart from his peers at the time. This one act symbolised what Fali stood for. He cherished the freedoms of his countrymen. Any attempt to suspend fundamental rights was anathema to Fali for it represented a deathblow to our constitutional ethos. He was not willing to be part of a government which attempted to muzzle our freedoms.
It is that moral courage that took him from strength to strength. He became the unmatched leader of the Bar. He was president of the Bar Association of India from 1991 to 2004. He was president of the International Council for Commercial Arbitration 1994 onwards and was recognised globally as a jurist. Apart from other positions he dawned in international forums he also served as honorary member of the International Commission of Jurists from 1988. He was honoured with a Padma Bhushan in 1991 and was a recipient of the Padma Vibhushan in 2007.
But Fali Nariman was not limited to the Bar alone. He was a man of letters, authored several books. His lectures were a treat to listen, full of anecdotes and wit, for which he was admired across boundaries.
I remember, in my younger days as a new entrant to the profession, Fali always encouraged me. We developed a warm relationship, which lasted till his last days. Of late, he was disturbed at the manner in which the Supreme Court rendered its judgment with reference to Article 370 of the Constitution of India and was bold enough to criticise it publicly. Watching the near demise of constitutional values and the invasion of the secular values of our country, his lament in that regard was reflected in the several comments that are in the public domain. In his autobiography Before Memory Fades he wrote, “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.” Some of his other publications are The State of Nation and God Save the Hon’ble Supreme Court.
I remember his stint in Parliament, as a nominated member where his contributions were thoughtful and constructive with no political flavour. He was completely apolitical in his personal life and public postures. He was wedded to our constitutional ethos and cherished its values. Whenever he saw our constitutional ethos and values being diminished, he never hesitated to raise his voice.
Perhaps the last letter that he wrote to anyone was on February 16, 2024 when he wrote to me after the Supreme Court struck down the Electoral Bond Scheme. He was happy to note that the constitution bench held that “manifest arbitrariness” in enacted law is now an integral part of Article 14. He then stated that he hoped that at some point in the future, the Court will strike down the ‘no-bail provision’ in recently enacted laws.
He cherished his freedoms while he was here. I am sure he will cherish his freedom away from us, secure in the comfort of being laid to rest next to his wife Bapsi.
Kapil Sibal
Senior lawyer and member of Rajya Sabha