Fali S Nariman: The Man Who Championed the Cause of 'Basic Structure’

He was worried about the direction India was taking and thought it was drifting towards becoming a theocratic state.

One of the most important things which we as lawyers should preserve is the basic structure doctrine which has been the test of arbitrariness and opens the scope of judicial review.

(Photo: Kamran Akhtar/The Quint)

“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." – Fali S Nariman, Before Memory Fades: An Autobiography

On 21 February 2024, the country lost one of its veteran lawyers, Fali Nariman, who was full of life even at the age of 95 years – which is indicative of the fact that he was working on a case till 10 PM, the day before he passed away.

As a young lawyer, I recall watching his lectures, and arguments and especially reading his books through law school. My first and last interaction with him was near the Supreme Court library where he told me that "the only thing which should be preserved is the basic structure doctrine.”

He was talking about how the Basic Structure doctrine has been the most noble invention of the bar and bench.

Nariman Was a Staunch Critic of the Emergency

He was born in 1929 in Rangoon (now Yangon), Myanmar, to Sam Bariyamji Nariman and Banoo Nariman and went to Bishop Cotton School in Shimla, following which he graduated in Economics and History from St Xavier’s College in Mumbai and pursued his law degree (LLB) from the Government Law College, Mumbai (GLC). He also received the prestigious Padma Vibhushan award in March 2007 from the then-President Dr APJ Abdul Kalam.

Nariman was brought up in a Parsi family and both, Fali Nariman and his son, Rohinton Nariman (Former Supreme Court Judge) have a tremendous memory and both were an Ordained Priest.

Apart from being an excellent narrator at the bar, Nariman also wrote many books during his lifetime including his autobiography – Before Memory Fades. His autobiography also gives a detailed insight about the National Emergency which was imposed in 1975, when he was the Additional Solicitor General of India.

In the book, he recalls how he had to struggle to find accommodation in Delhi post his resignation. People were afraid to let out their houses to him as he had dared to go against Indira Gandhi.

“If you do not acquire the fine art of suppressing your ego when you are young, it will surely overtake you when you are older, after which it will become an incurable disease. What is worse is that you will also become a bit of a bore.” – Fali Nariman, Before Memory Fades, An autobiography

An overview of Nariman's career

Source: Author

The Man Who Lived By the Basic Structure Doctrine

He was an essential instrumental to the development of the Indian Constitution's Law and especially in the formulation of the Basic Structure doctrine.

Nariman was the Additional Solicitor General of India from May 1972 to 25 June 1975, resigning from that post upon the Declaration of Emergency on 26 June 1975. During his lifetime, he always focused on the idea of Constitutional supremacy and he always appreciated the judicial invention of the Basic Structure doctrine – which was promulgated by the Supreme Court in the case of Kesavananda Bharati vs State of Kerala.

On 16 September 2023, he delivered a lecture at the Ram Jethmalani Memorial Lecture where he said that the Basic Structure doctrine has achieved constitutional permanence not only in India but also in six other nations globally that have both acknowledged and embraced the principle of placing a restraint on the legislative power of constitutional amendment.

He further added:

“Individual members of the public may from time to time get worried, as I sometimes am, with orders and decisions given by individual judges of the Supreme Court. But please never lose faith in the higher Judiciary as an institution, as one of the three constitutional organs of good governance.”

While delivering the inaugural address at the second Ashok Desai Memorial Lecture, Nariman said, "Basic structure theory was the response of an anxious and activist Court to the experience of the working of India's constitution during our Nation's first 25 years."

In 1975 when the National Emergency was imposed under the Indira Gandhi Regime, Mr Nariman was the Additional Solicitor General (ASG).

However, just a day after the imposition of the Emergency, he resigned from the position in protest against the draconian measures taken by the government.

Notable Cases Which He Was a Part Of

Although he was a part of many judicial marathons during his career of more than seven decades, here are some of the landmark cases of which Fali Nariman was a part:

I C Golaknath & Ors vs State Of Punjab & Anrs (1967): The Supreme Court ruled that Parliament could not curtail any of the Fundamental Rights in the Constitution and cannot make a law that is capable of infringing the fundamental rights of citizens. In this case, Nariman appeared as an intervenor supporting the petitioners seeking the preservation of fundamental rights.

Kesavananda Bharati Sripadagalvaru vs State Of Kerala And Anr (1973): This was a case very close to his heart because this was the Grundnorm that shaped the basic structure doctrine. Fali Nariman assisted Nanabhoy Palkhivala. In this case, the Supreme Court culled down Parliament's power to amend the Constitution and simultaneously it gave the judiciary the authority to review any constitutional amendment on grounds of violation of the basic structure of the Constitution.

TMA Pai Foundation vs State of Karnataka (2003): In this landmark case, an 11-judge bench gave a significant decision in the judicial landscape governing the right of minorities to establish and administer educational institutions. The Court recognised the autonomy of private educational institutions under Article 19(1)(g) of the Constitution, and allowed them to operate without excessive governmental interference. Nariman was one of the leading lawyers in this case and argued the case in favour of upholding minority rights.

Supreme Court Advocates-On-Record vs Union Of India (2015): Nariman also appeared in the notable NJAC case where a constitution bench in 2015 struck down the National Judicial Appointment Commission (NJAC) which was tasked with the responsibility of making judicial appointments. In doing so, the Supreme Court considered the submissions of Nariman, appearing for the Supreme Court Advocates on Record Association, and quashed the NJAC on grounds that it violated the freedom of the judiciary, which was against the Basic Structure doctrine.

Nabam Rebia, and Bamang Felix vs Deputy Speaker (2016): In this notable case, Nariman appeared for House whip and the Supreme Court for the first time in its history, effectively nullifying the President’s rule and restoring the previous State government with Nabam Tuki as Chief Minister. However, Chief Minister Tuki was soon voted out of power in a floor test and the Court’s decision was reversed through political means. The Supreme Court held that the Governor’s powers to summon, dissolve and advance a session are within the scope of judicial review.

Nariman Cited SC’s Article 370 Judgment As ‘Constitutionally Flawed’

These were some of the cases where Nariman played a crucial role, but the list is endless and the cases are many.

Most recently, he also appeared in the In Re: Article 370 of the Constitution, where the Supreme Court upheld the validity of the Union Government's 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution. The Court held that the State of J&K had no internal sovereignty and the concurrence of the State Government was not required to apply the Indian Constitution to the State of J&K. It was held that Article 370 was a temporary provision.

It is pertinent to add that Nariman was not happy with the decision of the Supreme Court, the same can be reflected through an interview he gave to Karan Thapar, where he said that the judgment was 'constitutionally flawed'.

“Welcome only as so far it has facilitated a complete integration of Jammu and Kashmir into the union of India which is really a union of the federation of states, which is a good thing. But it is constitutionally flawed because in my personal view what has been done by the Hon'ble Court is not in accordance with the provisions of the Constitution.” - Fali Nariman on the Article 370 judgment.

In Loving Memory of a Secular India

Fali Nariman, as some suggest, has left behind a legacy that inspires the upcoming generation of lawyers.

As a young lawyer, it is fortunate enough for me and many of us to be a part of the same bar when such stalwarts were practising. In such times, when the rule of law has been on the verge of being trembled at times, we need more people like him to fight the constitutional battles.

While paying tribute to him, Senior Advocate Sanjay Hegde has rightly summed up:

“To call him the Bhishma Pitamah of the Indian legal world would be a cliche, but that certainly was the position he occupied, even on his final bed of arrows. He had written in his autobiography, “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.”

He was extremely worried about the direction that India was taking. He thought that India was drifting to being a 'theocratic state'.

Many criticised him for the stand he took during the 1984 Union Carbide and appeared for it, but lately, Fali S Nariman said in hindsight, he "certainly would not have accepted the civil liability case".

"If I had to live my life all over again, as a lawyer, and the brief came to me and I had foreknowledge of everything that later came in, I would not have accepted the case,” he said in an interview with Karan Thapar’s Devil's Advocate programme on CNN-IBN.

One of the most important things that we as lawyers should preserve is the Basic Structure doctrine which has been the test of arbitrariness and opens the scope of judicial review.

From Nani Palkhivala to Fali Nariman, the Parsi community has given us some outstanding legal experts, and in the words of Senior Advocate Indira Jaising, "Parsi community has always contributed a judge to the Supreme Court, but Nariman chose not to be a judge of any Court."

Hence, his legacy and contributions will always be a helping hand for every generation of lawyers.

Rest In Power, Nariman Sir.

(Areeb Uddin Ahmed is an advocate practicing in Uttar Pradesh. He also writes on various legal issues. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)