Landmark Cases Advocated by the Late Legal Luminary, Fali S. Nariman

A Loss to the Legal Community: On February 21, 2024, the legal fraternity mourned the passing of Fali S. Nariman, an eminent jurist and Senior Advocate. With a career spanning 75 years, Nariman was renowned as one of India’s most distinguished legal minds.

Recipient of the 19th Lal Bahadur Shastri National Award

In 2018, Nariman was honored with the prestigious 19th Lal Bahadur Shastri National Award for Excellence in Public Administration, a testament to his significant contributions to the field of law and public service.

The ‘Bhishma Pitaamah’ of the Indian Judiciary

With fifty years of service as a Senior Advocate of the Supreme Court, Nariman earned the esteemed title of the ‘Bhishma Pitaamah’ of the Indian Judiciary. His influence and impact on the legal landscape were profound and enduring.

Courage and Clarity in Advocacy

Throughout his legal career, Nariman was characterized by his fearless advocacy and the clarity with which he presented his arguments. His unwavering commitment to truth and justice garnered respect from colleagues and adversaries alike.

Shaping India’s Constitutional Jurisprudence

Over the span of seven decades, Nariman played a pivotal role in shaping India’s constitutional jurisprudence through his involvement in various landmark cases. His legal acumen and strategic approach left an indelible mark on the country’s legal framework.

Exploring Notable Legal Cases

In this article, we delve into some of the most notable cases argued by the late Fali S. Nariman, showcasing his brilliance and leaving a lasting legacy in the annals of Indian law.

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

In this landmark case, Henry and William Golaknath challenged the government’s acquisition of their lands under the Punjab Security of Land Tenures Act, 1953, which was incorporated into the IX Schedule of the Constitution through the 17th Constitutional Amendment Act, 1964. They contended that Parliament lacked the authority to amend fundamental rights under the Constitution, particularly the Right to Property as outlined in Article 19(1)(g).

Fali S. Nariman played a supportive role as a junior counsel alongside A.K. Sen and Nani Palkhivala in presenting the case. This judgment marked a significant assertion of the Supreme Court’s judicial authority over Parliament’s powers since 1950. The Court’s ruling established that Parliament could not amend the fundamental rights enshrined in the Constitution.

The decisions in Sajjan Singh (1965) and Golaknath (1967) cases laid the groundwork for the “Basic Structure Doctrine” introduced in the Kesavananda Bharati case (1973). Nariman’s courageous and well-reasoned advocacy in this case contributed to the consolidation of the “rule of law” in India.

The Second Judges Case

In the Second Judges Case, Indian jurist Nariman, alongside other distinguished senior counsels, appeared before the Supreme Court of India to request a reassessment of the ruling in the SP Gupta case. Nariman argued that the interpretation of the term ‘after consultation with’ should be determined within the constitutional framework and parameters, solely based on the true essence and purpose of such consultation. He emphasized that in the context of judicial appointments, ‘consultation’ simply implies ‘seeking advice’.

Furthermore, Nariman contended that concerning appointments by the President to non-elective constitutional positions, the requirement for prior ‘consultation’ with specific constitutional functionaries, including the Chief Justice of India, only applies to appointments to the higher judiciary.

The bench at that time, concurring with the arguments put forth by the eminent jurist, affirmed that “the role of the Chief Justice of India in matters concerning appointments to the Supreme Court and the High Courts, as well as transfers of High Court Judges and Chief Justices, holds precedence, with the executive merely executing appointments and transfers in accordance with the Chief Justice of India’s opinion.”

Nariman advocated for the consultation of all Supreme Court judges in determining future appointments to the Supreme Court bench. This case led to the establishment of the Collegium system, which recommends the appointments of judges to the Supreme Court and High Courts, thereby shaping the framework for judicial appointments in India.

In the Third Judges Case, the then President of India, KR Narayanan, exercised his authority under Article 143 of the Indian Constitution to submit a ‘reference’ to the Supreme Court, seeking clarification on the procedure for judicial appointments following the Second Judges Case. Additionally, the issue of the justiciability of these matters, including the determination of judge-strength in the High Courts, was addressed.

Indian jurist Nariman provided submissions in this case to assist the Supreme Court. The Court clarified that the Chief Justice of India (CJI) should consult with other judges of the Supreme Court before making any recommendations. Furthermore, the Court stated that it is preferable for the collegium to comprise the Chief Justice of India and the four most senior puisne judges of the Supreme Court.

NJAC Case

In the case related to the appointment and transfer process of judges concerning the Supreme Court and High Courts, Eminent Jurist Nariman played a pivotal role. Commonly referred to as the Fourth Judges Case, the NJAC (National Judicial Appointments Commission) case saw Nariman as a key figure. As a Senior Advocate, he vehemently opposed the 99th Constitutional Amendment.

Nariman argued that the NJAC Bill’s consideration and passage before the enactment of the Constitution (99th Amendment) Act rendered it null and void. He further contended that the implementation of the NJAC would jeopardize the judiciary’s independence. Taking into account these arguments, the Supreme Court invalidated the NJAC Act of 2014, affirming the continuation of the existing collegium system.

Through his advocacy, Nariman played a crucial role in safeguarding the autonomy of India’s higher judiciary.

Bhopal Gas Tragedy

In 1984, a catastrophic event unfolded in Bhopal, resulting in the deaths, injuries, and displacement of thousands due to the release of 42 tons of toxic chemicals from a pesticide plant owned by Union Carbide India Limited. In this matter, Senior Advocate Fali S. Nariman represented Union Carbide and proposed a compensation amount of 426 million dollars for the families affected by the tragedy. Following negotiations with the Central Government, the Company eventually agreed to offer 470 million dollars to the victims of the Bhopal gas disaster.

Reflecting on his decision to take on the Bhopal Gas tragedy case, Nariman later expressed, “At that age, one is always ambitious. However, I realized later on, though it was too late by then, that one cannot simply withdraw from a case once it has been undertaken… it wasn’t merely a legal case; it was a profound tragedy.”

Cauvery Water Dispute

For more than three decades, Nariman represented Karnataka in a prolonged dispute over water sharing with Tamil Nadu. In 2016, the Supreme Court ordered Karnataka to release 6000 cusecs of water to Tamil Nadu. However, the Karnataka Legislative Assembly passed a resolution stating their inability to share water and defied the court’s order. In response, Eminent Jurist Nariman declined to continue arguing on behalf of the Karnataka government. Recognizing Nariman’s stance, the bench commended him for upholding the esteemed tradition of the legal profession.

In addition to these cases, Fali S. Nariman participated in numerous other legal matters, leaving a lasting impact on Indian law with his extensive knowledge. He not only excelled in courtrooms but also contributed to legal scholarship, enriching the field of law for future generations.

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.

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