Fali S. Nariman legacy: 5 landmark cases in Constitutional Law

Fali Nariman argued in favour of making an independent body for the appointment and transfer of judges, to secure the independence of the judiciary. His arguments shaped the progression and expansion of the “collegium system”.

Fali S. Nariman, one of India's finest jurists of the last seven decades, passed away earlier this month, on February 21, 2024. Certainly, this signals the end of an era. Nariman's legal journey began in 1950 when he appeared as an advocate before the Bombay High Court and was elevated as Senior Advocate in 1961. He moved to the Supreme Court of India in 1971. That he was courageous in his legal journey, may be assessed from the fact that he resigned from the post of Additional Solicitor General of India to protest against the imposition of National Emergency by the Indira Gandhi Government in 1975.

Fali Nariman, Constitutional Lawyer: 5 landmark cases

Fali S. Nariman wrote in book, God Save the Hon’ble Supreme Court (2018), “However old you be, or howsoever old you get, may you always have the vigour and the enthusiasm of youth, to appreciate the enormity and magnificence of the Law, and the will to unravel the mysteries and the mistakes in the Law!”

This statement signifies how passionate he was with respect to the grandeur of law. His juristic journey may be exemplified not only through his writings on the various legal subjects but also through his reasoned advocacy.

1. I.C. Golaknath v. State of Punjab (1967)

Henry and William Golaknath were petitioners in this case. Their lands were acquired by the government through the Punjab Security of Land Tenures Act, 1953. The Act was put in the IX Schedule of the Constitution by the 17th Constitutional Amendment Act, 1964. The petitioners argued before the Court that the Parliament cannot amend the fundamental rights enshrined under the Constitution. Right to Property was then a fundamental right under Article 19 (1) (g) of the Constitution.

In this case, Fali S.  Nariman appeared as a junior counsel for providing assistance to A.K. Sen and Nani Palkhivala. This was the first judgment since 1950 where the Supreme Court of India asserted its juridical power against the powers of Parliament. The Court in this case held that the Parliament cannot amend the fundamental rights recognized by the Constitution. It was the Sajjan Singh (1965) and Golaknath (1967) cases which paved the way for the “Basic Structure Doctrine” in Kesavananda Bharati case (1973). The courageous and reasoned advocacy in this case established the strong root of the “rule of law” in India.

2. Union Carbide Corporation v. Union of India (1989)

This case was related to Bhopal gas leak disaster in which thousands of people died, injured, and displaced. Almost 40 tons of methyl isocyanate gas leaked from a plant situated in Bhopal on December 2/3, 1984. Fali Nariman appeared before the Court in this case on behalf of the Company. The Company was responsible for the disaster, but through an outside court settlement, it managed to escape from the responsibility by offering USD 470 million. He did not hesitate to accept his mistake publicly when he took a wrong case which was for him nothing but a “tragedy”.

3. Narmada Dam Project Case (1998)

Due to the Narmada Dam Project, many tribals were affected and displaced. In this case, a Public Interest Litigation (PIL) was filed by the tribals. Nariman was representing the State of Gujarat in this case. He demonstrated exemplary courage to withdraw from the case of Narmada Dam Project (1998) on the ground that Christians were targeted by aggression and violence in the State. Nariman requested the Government to take actions to curb the violence, but the situation could not improve. Therefore, he decided to return the case brief to the State of Gujarat.

4. Judges Cases

Nariman appeared before the Supreme Court of India in Second, Third, and Fourth Judges (NJAC) cases, which were related to the process of appointment and transfer of judges with respect to High Courts and the Supreme Court of India. In these cases, he argued in favour of making an independent body from the other organs of State for appointment and transfer of judges to secure the independence of the judiciary. His arguments shaped the progression and expansion of the “collegium system”.

Especially, in the Fourth Judges case (NJAC) (2015), the Court declared the 99th Constitutional Amendment Act, 2014 and the National Judicial Appointments Commission Act, 2014 “unconstitutional and void”, and upheld the existing collegium system. In the words of the Supreme Court, “It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance”.

Nariman succeeded in defending the independence and autonomy of the higher judiciary in India.

5. T.M.A. Pai Foundation v. State of Karnataka (2002)

He appeared and argued before the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka (2002). The case was related to the ordinance brought by the government in Karnataka to regulate the capitation fee. One of the issues before the Court was if such regulation has affected the affiliated and un-affiliated minority educational institutions with respect to their right to establish and administer an educational institution under Article 30 of the Constitution.

In this case, the Supreme Court upheld the autonomy of minority unaided institutions to establish and administer the institutions on the basis of religion or language. The Court held that the status of minority can be decided on “state-wise basis” instead of “country-wise basis”, therefore ruled in favour of local diversities vis-a-vis establishment and administration of minority institutions.

The Apex Court held that the minority character of the institution cannot be diminished or abolished by the regulation of Government so much so that the right to establish and administer educational institutions might become illusionary. However, these rights were subjected by reasonable restrictions, which are textually not explicit under Article 30 of the Constitution.

In the words of the Apex Court, “Any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30”.

Nariman in his book God Save the Hon’ble Supreme Court (2018) made a critique of the judgment. He quoted Upendra Baxi, in whose reasoned opinion, the minority rights under Indian Constitution were regarded by the Supreme Court as “preferred freedoms”.

After the TMA Pai Foundation verdict, as per Fali S. Nariman, that status was diminished, since the minority rights were relegated to the status of the Right to Freedom of Practicing Profession or Carrying Trade, Commerce, or Occupation under Article 19 (1) (g) along with the reasonable restrictions prescribed under Article 19 (6) of the Constitution. Therefore, the original intent of the framers of the Constitution, manifests under Article 30 of the Constitution, to guarantee the absolute and unconditional rights of minorities based on religion and language, was not accepted by the Court.

In his words, “My plea to the judges that no suspicion, but only concrete allegations and proof of such allegations in individual cases could deprive minority educational institutions of their right to administer minority educational institutions established by them, was invariably met with stony silence!”

Conclusion

Mr. Fali S. Nariman advised in Before Memory Fades: An Autobiography, “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”. His wise words would always be an inspiration to live courageously with the right reason.