Fali Nariman’s acute observations are a launch pad for research on Constitutional issues

The anthology of Nariman’s writing will serve a special purpose which is to become a reference point for many debates on a host of legal and political issues.

Eminent jurist and doyen of Indian bar Fali S Nariman passed away last year at the age of 95. A lawyer whose practice was as old as the Supreme Court of India had argued many constitutional cases with far-reaching political and social consequences.

Apart from his disarming arguments in the courtroom, his sharp insights on important issues were displayed in his writings and speeches. His last book ‘You Must Know Your Constitution’—a “definitive tome” on the Indian Constitution, is marked as an “educative and informative exposition of the different parts of the Indian Constitution”. And, now, a year after his demise, an anthology of his speeches, articles, and lectures has been compiled by Subhash Sharma and published by Hay House.

What makes these articles/speeches and lectures important is that Nariman has analysed these issues from a lens that is not essentially legal. More than the legal scrutiny of important legal, political, and social issues, his analysis comes across as commentary by an active member of civil society. For instance, when he writes about the issue of corruption, he titles it “Campaign against corruption: Has it succeeded”. It becomes evident that the concern regarding the issue of corruption is not coming merely from a veteran law practitioner but from a concerned citizen.

On corruption

He writes, “When talking about corruption, we always make a common mistake: to use the number of laws enacted or convictions obtained as an index of the fight against corruption. Wrong. The only real index is the visible degree of tolerance of corruption amongst people who individually abhor it, or at least say that they abhor it.”

His analysis of the issue of corruption is marked by many case studies and insights from those people who fought against corruption. Nariman analysis hints at cynicism over the inevitability of corruption as he quotes Polish Nobel Laureate Czeslaw Milosz, who had said, “Ill at ease in the tyranny, Ill at ease in the republic. In the one I longed for freedom, in the other the end of corruption.” However, at the end of his article, he reposes his faith in “great men (and women)" to curb this menace, though he laments they are extremely short in supply.

On contempt

In a similar incisive analysis, Nariman lays bare the different aspects and strands of the power of contempt that lies with the judiciary. Whenever the issue of contempt of court arises, an underlying presupposition is that courts should be ‘revered’, and any deviation from this reverence can lead to contempt. Nariman acknowledges the fact that in an adversarial system of litigation like court, where there is always one winning and a losing side, grudges against the judges are bound to happen. These grudges can sometimes manifest into “scurrilous comments” about the judges and the judgments. Nariman also believed that India is an extremely litigious society and there are a “number of nuts—people who will make any type of allegation against anyone at the drop of a hat”, hence, according to Nariman this part of the criminal contempt jurisdiction, though now obsolete in England, should remain in India.

However, while acknowledging the necessity of the contempt jurisdiction, he succinctly sums up the problem attached to it.  He writes, “However, there are problems. In this branch of the law, the lines are thinly drawn and are not very clear, and they depend very much on the perception of the judge administering the contempt jurisdiction in the name of the court. The public, the men and women of the media, and lawyers are content to accept constraints imposed by the "rule of law" but are not prepared to accept ad hoc rules imposed according to the whims, vagaries, and idiosyncrasies of individual judges.”

A wide canvas

Different chapters in the book are replete with such rare insights and anecdotes. From analysing the evolution, utility and challenges related to special leave petitions (SLPs) to the evolution of separation of power in Indian polity, Nariman's decades-long experience in law, his wit, his humour and his concern for the nation-building and roadblocks are palpable in all these chapters.

In an article written in July 2013, which is the first chapter of the book, Nariman makes a deep and sincere inquiry into the “state of the nation”. The chapter was written at a time when the country was going through a challenging phase. The government at the centre at that time was marred by allegations of corruption. In this scenario, one of the finest legal minds and public intellectuals of the country chose to analyse the prevailing state of affairs with utmost objectivity, completely devoid of any political or ideological prejudices, guided solely by concern for the people and the nation.

This anthology of Nariman’s writing will serve a special purpose which is to become a reference point for many debates on a host of legal and political issues. Rich in references and anecdotes, it can also be a starting point for legal researchers to start research on many important constitutional issues. And, that will be the most fitting tribute to a jurist who was an avid reader, writer and legal intellectual with the most accessible body of work.