Monday, July 12, 2010
Before Memory Fades
Fali S Nariman
Even great men have blots. It helps them remain human. None of us who admires and respects Fali Nariman would want him to be anything more than human. One of the country’s foremost and legendary legal experts, he is regarded with awe not just in legal circles but by the political class of all hues as well. But in his long and memorable career, he has taken decisions that came to be termed as controversial or inconsistent with his stated philosophy. Whip-lashed by friends and well-wishers, Nariman bore it all. Lesser men would have succumbed. He endured, as did his legend –despite the Bhopal gas leak issue.
Nariman has recently been in the news for two reasons: his admission that he might not have defended Union Carbide had the full impact of the tragedy been known to him then, and the release of his autobiography, Before Memory Fades, that deals in detail, among other things, with the subject.
Nariman reportedly told a television news channel recently that he had appeared for Union Carbide in the courts since it was just another case for him. But now he realized that it was more than a case – it was a tragedy. Implicit in his introspection is an acceptance that he had blundered in defending the US giant. The move to represent Union Carbide had stung friends like Professor Upendra Baxi.
But that is now. In the book, he is neither remorseful nor defensive. He quotes articles that he wrote in the foreign journal, Human Rights Tribune in 1992, and in Seminar in December 2004/February 2005, to explain his point of view. Interestingly, Nariman does not add anything fresh to these articles, excusing himself to the reader saying, “I would be indulging in what we lawyers call ‘special pleading’ if I add anything to what was published in these journals.” It may be that fatigue over having to repeatedly defend his stand or simply the fact that all that was needed to be said had been said in the two magazines, explains the reluctance.
Whatever the case may be, Nariman has been fair to all. He reproduces his own article, Baxi’s scathing response, his rejoinder and finally the distinguished academic’s somewhat more sober reply. While Nariman sticks to legalities in putting his point across and taunts Baxi’s emotionalism by commenting that “sentiment is a poor guide to decision making – but toxic torts do generate a great deal of it,’ Baxi dismisses the article as “elaborate apologia for the unconscionable settlement that he so assiduously actually promoted.”
In full flow after ridiculing Nariman on the issue of monetary settlement for victims, Baxi recalls the suppression during Emergency. “The Union Carbide Corporation, and its normative cohorts, now declare an even more perennial enduring state of emergency against the present Bhopal victims…”, he remarks rather dramatically.
The comparison must have angered Nariman who had sacrificed the post of Additional Solicitor General – that had made him relocate from Mumbai to Delhi – in protest against the Emergency. In a strongly worded rejoinder, he wrote, “I heard and saw Professor Baxi keep extolling its (Emergency) virtues in broadcasts to the nation – over Doordarshan. My family and I remember this as vividly as Baxi remembers my role in the Bhopal civil case.”
Baxi responded by accusing Nariman of “hitting below the belt.”
But it is not only the Bhopal case that raised questions. In March 1998, he declined an offer to take over as Attorney General of India. The reason, he says, is because he did not want to be “part of a BJP led government.” But he had no qualms in accepting the nomination to the Upper House from a BJP government. He completed his tenure of six years, and even the Gujarat riots could not move him to quit, although it must be said that in his intervention in the Rajya Sabha, he very forcefully presented his anger over the riots and the plight of the minorities in that state.
It is strange that while Nariman should devote so many pages to the Bhopal issue, he does not even mention a case that he himself so passionately argued and one that made national and international news and pitch-forked Swami Agnivesh in the limelight: the issue of bonded labour. As Arun Shourie – one of Nariman’s admirers – wrote in his book, Courts and Their Judgements, “F S Nariman, one of the country’s most distinguished lawyers, argued the case on behalf of the Bandhua Mukti Morcha with feeling and with his customary brilliance.” Apparently, the distinguished lawyer did not consider it important enough to deserve mention in his autobiography. One wishes he had, because it shows how the judiciary at times fails the underprivileged.
Nariman has been involved in some of the most path-breaking cases, even if at times in a minor capacity. He recounts with justifiable pride his role in the Golaknath case in which he appeared as a junior counsel in 1967 for a group of petitioners. But when the Kesavananda Bharati case came up six years later to decide on the correctness of the Golaknath judgement, he was already Additional Solicitor General. He did not appear for the government because he had represented the petitioners in the Golaknath case. Nariman thus had to contend with being on the sidelines in a judgement that redefined the role of the judiciary in upholding the basic features of the Constitution. The judgement said that, while no part of the Constitution was beyond amending powers of the government, the basic features of the Constitution could never be abrogated, even by a constitutional amendment.
The eminent jurist is careful in his evaluation of judges he has appeared before. He picks up just two for fulsome praise: Subba Rao and Krishna Iyer – the former for “single-handedly” taking on Parliament over interpretation of Article 31 of the Constitution, and Iyer for bringing a humanitarian touch to his rulings and being all the time “fearless.”
Nariman is disillusioned with the process of selection of judges to the higher judiciary. He is not happy with the Collegium system, which came in place to shut out the earlier process that gave the government a complete say in selection matters. He was not happy with the earlier system too, which is why he appeared on behalf of the petitioner, Supreme Court Advocate-on-Record Association, in what is now famously known as the Second Judges Case.
The Supreme Court, having as example the havoc caused by A N Ray as Chief Justice – who during the Emergency indulged in large scale punitive transfer of high court judges – decided not to vest all powers of selection with the Chief Justice of India (CJI), but made it mandatory that the CJI consult (then) two of his senior-most colleagues. A collective opinion would thus prevail.
Nariman had won the case. The government would not have primacy over selection of judges to the higher judiciary. Even better, the Collegium of judges would keep a check on a truant CJI as well.
But Nariman believes things have not worked out as envisaged. “…the extra-curricular task (imposed upon five senior-most judges by a judgment of the court itself), that of recommending appointments to the highest court, has not been conducted with the care and caution that it deserves. There is too much ad hocism, and no consistent and transparent process of selection.”
It is a case, he says, he wished he had lost. Had that happened, the government would have retained its supremacy, and who knows, things could have been worse. One A N Ray was bad enough – imagine governments inundating the judiciary with several such Rays!