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Before Memory Fades: An Autobiography by Fali.S. Nariman

Born on the tenth day of 1929, at the General Hospital in faraway Rangoon, to a Zoroastrian, or (Parsis) family as they are called, Fali Sam Nariman, ‘Baba’ to his parents, had to leave for India and take refuge when the Japanese bombed Rangoon in December 1941, during the Second World War. Little did they know that their son would rise to become one of India’s greatest lawyers’. Fali was sent to Bishop Cotton School Shimla, then to St. Xavier’s College Bombay for his BA (Hons) and finally to Government Law College Bombay for his LLB. Nariman started his career at Payne & Co. as a trainee and thereafter joined the prestigious Kanga Chamber which apart from Sir Jamshedji B. Kanga boasted luminaries such as Harilal Kania the first Chief Justice of independent India and eminent lawyers such as Nani Palkhiwala, H. M. Seervai and Soli J. Sorabjee to name a few. It was Sir Jamshedji who helped Fali understand that “the art of advocacy – is to make simple what is complicated and vice versa”.

Fali still recalls of those early days in the Bar when he would occasionally get a brief in the form of “Brief for Consent Decree” on which he would mark the magnificent fee of one gold mohurs, though the customary fee was two gold mohurs. For juniors like him a consent decree brief would take at least three appearances in order to convince the judge. In another occasion when Fali was just a year old in the bar, Nani Palkhiwala had entrusted him with an appeal under the Bombay Land Requisition Act. Nani had an engagement before the Income Tax Appellate Tribunal, the matter reached the court, before Chief Justice Chagla and Justice Gajendragadkar. Fali told the bench that Mr Palkhiwala was appearing in another matter before the ITAT and would be coming in sometime. Then Chief Justice Chagla asked Fali if he knew the matter. This turned out to be a golden opportunity for Fali to prove himself and he read the facts and the legal provisions. While he could see the solicitors and clients who were sitting behind him wringing their hand in despair, Nani arrived before the court just when the judgement had been delivered. Nani interrupted but Chagla who never liked interruptions when he was dictating judgments, said “I don’t think, Mr. Palkhiwala, you can add anything more to what Mr. Nariman has so well presented”. These were some of the early memories in the Bombay Bar which Mr Nariman still recalls and cherish.

Before Memory Fades is not just a book but a classic piece of art if I may call. It is a commentary on the most important court cases like Shankari Prasad (1951), Sajjan Singh (1965), Golaknath (1967), Keshavananda Bharti (1973), and Minerva Mills (1980) which laid the fundamental basis of the Indian Constitution. Nariman explains how the judiciary dealt with these amendments and held that Fundamental Rights form a part of the ‘basic structure’ of the Constitution which can never be amended. Nariman recalls some of the most touching family sentiments, when he was offered High Court Judgeship at the age of 38 but declined the honour for financial reasons. Thereafter his daughter Anaheeta told Bapsi (Nariman’s wife) “Mummy, please tell daddy to accept; I promise I will not spend too much money, and will cut down on chocolates and sweets because I would like him to be a judge”. Years later, Anaheeta presented Fali a cartoon picture which reminds Nariman of “The Judge You Might Have Been”.

This autobiography gives a detailed insight of the National Emergency in 1975, when he was the Additional Solicitor General of India. Fali recalls of those days like 12th June 1975 when Justice Jagmohan Lal Sinha of the Allahabad High Court pronounced the judgment in the election petition filed against Indira Gandhi by Raj Narain where she was held guilty of corrupt practice and thus was disqualified from holding any public office. On 22nd June 1975 an appeal for stay to the Allahabad High Court judgment was filed before the vacation bench before Justice V. R. Krishna Iyer. Nani Palkhiwala argued and got the judgment reserved, but on 24th June 1975 a conditional stay order was granted. Fali S. Nariman recounts his own defiance against autocratic rule when he resigned from the post of Additional Solicitor General of India in opposition to the declaration of Internal Emergency in 1975 by the Indira Gandhi government, being the only public officer in the country to have registered his protest against the suppression of civil liberties.

Nariman acknowledges the contribution of a brave Judge Justice H.R. Khanna, (the then second senior most Judge) in the case of ADM Jabalpur (1976). “Khanna knew, when he signed the decenting judgment, that he was signing away his future chief justiceship”. Justice Khanna resigned “in a blaze of glory” when justice Beg superseded him. That’s the reason still today Justice H.R. Khanna’s portrait hangs in the Court where he sat (Court No 2. Supreme Court) says Nariman. While reading Nariman’s book, one can sense that that the book is not only an autobiography but describes India’s political and constitutional history.

Nariman the lead counsel for the Union Carbide Corporation received severe criticisms while representing the company. Tribune des Droits Humains described him as a ‘Fallen Angel’, questioning his reputation as a human rights activist. In this autobiography Nariman has reproduced the letter that he wrote in response to the published article in which he defends himself by stating that the suggestion that lawyers who are human rights activists should not accept briefs of those who “violate the human rights of others’, is impractical and fraught with grave consequences as it puts an almost impossible burden on the lawyer of pre-judging guilt; and (more important) it precludes the person charged with infringing the human rights of another (such as one accused of murder) the right to be defended by a ‘lawyer of his choice” – in my country, a guaranteed constitutional right.”

Nariman also remembers those days when he was the standing counsel in the Supreme Court for the state of Gujarat in a PIL filed on behalf of the tribals who were displaced by the rising height of the Narmada Dam in Gujarat. When Nariman went through press reports where Christians in certain part of Gujarat were been harassed and their Bibles being burnt, he asked the then Chief Minister of Gujarat Mr. Keshubhai Patel to stop these acts of grave injustice. Inspite of the assurance given by the Chief Minister the situation worsened, now not only Bibles but Churches in various part of Gujarat was destroyed. In December 1998 Nariman returned the brief and said that “I would not appear for the state of Gujarat in this or any other matter”. Like Palkiwala, during Emergency of 1975, he too never compromised with his principals.

In one of the most important cases (Second Judges Case) decided by the Supreme Court Nariman appeared and won, “A Case I Won – But I Would Prefer To Have Lost”. Criticizing his own win, Nariman said “I don’t see what is so special about the first five judges of the Supreme Court. They are only the first five in seniority of appointment – not necessarily in superiority of wisdom or competence. I see no reason why all the judges in the highest court should not be consulted when a proposal is made for appointment of a high court judge (or an eminent advocate) to be a judge of the Supreme Court. I would suggest that the closed-circuit network of five judges should be disbanded.”

Before Memory Fades is much more than a chronological account of an eminent lawyer and humble person’s successful life. It is the work of a storyteller whose observations about places, people, and circumstances add up to provide a unique insight into the legal profession, from the early years of Independence when a young Fali joined the Bombay Bar and did “more watching than pleading.” It is a classic example of an extraordinary life lived so ordinarily and is much more than just a collection of anecdotes and reflections on the events and people that have filled his life. This book is a must read for all who have admires the living legend Mr. Fali Sam Nariman who was awarded the Padma Bhushan (1991) and Padma Vibhushan (2007), by the President of India in recognition of distinguished service in the field of jurisprudence and public affairs. This autobiography not only inspires us but also reminds us of how important a role a lawyer can play in the moulding of our country. Finally Nariman ends by thanking the secular India “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”.

SURAJIT BHADURI .

Lai Kadyan
Lai Kadyan
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