A champion of free speech

Vikas Singh

Ex-President, Supreme Court Bar Association

IN the wee hours of February 21, our nation lost one of its most illustrious jurists and a guiding light of Indian jurisprudence. Fali Sam Nariman’s legacy transcends his remarkable career, leaving an indelible imprint on the legal landscape. The highly regarded legal luminary had once remarked that law is a matter of the heart as well as the head. It was this ethos that led him to be the conscience-keeper of the Bar and the Bench. He was not the one to mince words while voicing his disapproval of judges pandering to the executive. For decades, Nariman was a bulwark against the Executive’s attempts to influence the appointment of judges in the higher judiciary. It was his legally impeccable submissions in the First Judge Case (SP Gupta vs Union of India) and the Second Judge Case (Supreme Court Advocates on Record Association vs Union of India) that resulted in the collegium system of judicial appointments. His role was crucial in the striking down of the National Judicial Appointments Commission by the Supreme Court. However, he never grew complacent and continued to work to make the collegium system more transparent and accountable.

Our constitutional jurisprudence is currently centred around the ‘basic structure doctrine’ evolved in the Kesavananda Bharati case. Nariman assisted the lead counsel, Nani Palkhivala, during the hearing of that case and had recently remarked that this doctrine was responsible for upholding the Constitution, as it was intended to be. Immediately after the landmark ruling in the Kesavananda Bharati case, Nariman also successfully supported the contentions of the petitioners in the Golaknath case, leading to the ruling that the Parliament could not curtail the fundamental rights ensured under the Constitution. Several landmark cases argued by Nariman have also been instrumental in affirming the principles of the Constitution. Being a passionate champion of free speech and secularism, Nariman played a pivotal role in The Indian Express case, in which the apex court held that freedom of speech under Article 19(1)(a) of the Constitution is inclusive of the ‘freedom of the press’. He ardently advocated for the right to freedom of expression and religious freedom in Bijoe Emmanuel vs State of Kerala and stood for the rights of minority educational institutions in the TMA Pai Foundation case.

Despite his career reaching great heights, Nariman emphasised the significance of integrity above all. He was appointed as the Additional Solicitor General of India at a young age, but was courageous enough to give up the honour in protest when the Emergency was declared in 1975. While representing the Gujarat Government in the Narmada Dam rehabilitation case, he observed that violent incidents against Christian missionaries were becoming widespread in the area. When the violence did not abate despite his intervention, he returned the brief.

Nariman was a staunch proponent of democratic values and believed in the importance of dissent not only as a safety valve but also as a message to the public about the robust functioning of the apex court. He commended the lone dissent of Justice HR Khanna in the infamous ADM Jabalpur vs Shivkant Shukla. Pointing out the absence of similar dissent in the recent judgment on Article 370, he had quoted American judge Justice Stanley Mosk: “A dissent may salvage for tomorrow a legal principle that has been omitted or forgotten today.”

Nariman’s contributions were not limited to the judicial sphere. He served as a member of the Rajya Sabha from 1999 to 2005, where he introduced a Private Members’ Bill, the Judicial Statistics Bill, 2004, to collect empirical data on the functioning of all three tiers of the Indian judiciary so that the backlog of cases could be addressed.

Though Nariman never contested the Supreme Court Bar Association elections, he was cognisant of the importance of a strong Bar. He would ensure his participation in the Bar discussions and voting in every election. He was an enthusiastic participant in the Friday Group discussions held by the association and would engage with young advocates. Nariman’s personality was never overshadowed by his success. I recall him sitting in the common room for lawyers at lunch, with the sandwich that was brought to him every day. However, whenever any lawyer offered him food, he would accept it humbly, regardless of the social or professional standing of the lawyer.

Nariman’s son, Justice Rohinton Nariman, not only kept his legacy unblemished but also added a cherry at the top. He first proved himself to be one of the greatest lawyers in his generation, and subsequently, he showcased his commitment to the judiciary by giving up his flourishing practice to accept his elevation as a judge of the Supreme Court, thereby becoming only the fifth judge to be elevated to the apex court directly from the Bar. Their honesty and dedication were demonstrated by their commitment and conduct when, in some instances, the two represented opposing sides in the courtroom.

A great lawyer is one who leaves behind a legacy for many generations to come. Our country has witnessed the presence of a select group of legal stalwarts who have not only been the pillars of the fraternity but have also consciously made efforts to strengthen the Bar and the judiciary. Fali Sam Nariman was one of the last of these legendary lawyers who ensured that justice was served to the last man standing. He had once joked: “Most people retire, but lawyers never do; they only drop dead.” He was preparing for a hearing just the day before he left us all, and indeed, any other way to go would have been unimaginable for him. His death has created a void that can never be filled, but we must cherish the legacy he has left behind.

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