BEFORE MEMORY FADES: A REVIEW

Submitted By:

ADITI ANAND, B.B.A. LL.B. (HONS.)

Submitted To:

Dr. Pratyush Kaushik

Assistant Professor

Legal English and Communication Skills

CNLU, Patna

This final draft is submitted in the partial fulfilment in the course

titled “Legal English and Communication Skills” for the completion
of B.B.A. LL.B. course.
 BEFORE MEMORY FADES: A REVIEW

26th August 2019

Chanakya National Law University, Patna

DECLARATION BY THE CANDIDATE

I, hereby, declare that the work reported in the B.B.A LL.B (Hons.) Project Report entitled
“BEFORE MEMORY FADES: A REVIEW” submitted at CHANAKYA NATIONAL LAW
UNIVERSITY, PATNA is an authentic record of our work carried out under the supervision of
Dr. Pratyush Kaushik. I have not submitted this work elsewhere for any other degree or diploma.
I am fully responsible for the contents of my Project Report.

(Signature of the Candidate)

Aditi Anand (2207)

B.B.A. LL.B., 1st year

SEMESTER -1st

CNLU, Patna
 BEFORE MEMORY FADES: A REVIEW

Dated:
 BEFORE MEMORY FADES: A REVIEW

ACKNOWLEDGEMENT
I would like to show my gratitude towards my guide Dr .Pratyush Kaushik, Faculty of Legal
English and Communication Skills, under whose guidance, I structured my project. I owe the
present accomplishment of my project to my CNLU librarians, who helped me immensely
with materials throughout the project and without whom I couldn’t have completed it in the
present way.

I would also like to extend my gratitude to my friends and all those unseen hands that helped
me out at every stage of my project.

THANK YOU,

ADITI ANAND (2207)

SEM.–1ST

CNLU, PATNA
 BEFORE MEMORY FADES: A REVIEW

ABSTRACT

This paper is an analysis/review of the celebrated autobiography of Fali S. Nariman, his early
career beginnings, professional struggles, personal inhibitions and moral qualms that each lawyer
faces at some point in time. The paper also endeavours to study his sharp criticism of not only
Indira Gandhi but also the entire justice system. It offers a chapter-by-chapter analysis, focusing
on the landmark judgments Nariman was involved in, and his opinions regarding the same. His
book, a must read for all persons associated with the legal profession, touches upon the side of
law nobody talks about – the conflict, the dissents and the repercussions of going against the
state. Before Memory Fades by Fali S. Nariman is a revelatory, comprehensive and perceptive
autobiography – candid, compelling and authoritative.
 BEFORE MEMORY FADES: A REVIEW

1 INTRODUCTION

In the early part of the book, Nariman recalls the fond memories of the day when Chief Justice
Chagla asked him to try and reproduce the facts of a case in the absence of his senior Nani
Palkiwala, and gave the decision in his favour. The biography tells us about the rebellious and
the professional Nariman. Nariman many a time during his professional life stood for causes, he
did not personally believe in. There are various cases in his illustrious career where he
represented the side, he might not have necessarily himself preferred to have won. In
the second part, this paper will talk about one of those. Further, in the third part the paper will
seek to show that Nariman has always done what he thought was morally right, even if that
would cause him personal discomfort. The paper will endeavor to study his sharp criticism of not
only Indira Gandhi but also the entire justice system.

1.1 Aims And Objectives

 To understand the reasoning behind the autobiography.

 To understand the implication of legal arena as per the eyes of Nariman.
 To understand the criticism on entire justice system.

1.2 Hypothesis
The researcher thinks that Fali S. Nariman focussed on the area of Judicial Governance and
Judicial Activism and some Judges of the Supreme Court, quoting a famous line: “Law
Without Politics is Blind, Politics Without Law is Deaf”.

1.3 Limitations in The Study

The fact that this study was exploring a charted territory, that to not a surreptitious one
resulting in lots of unavoidable and limited access of the subject. Since the researcher is
still a student, he has limited access area. The researcher has limited time to read various
books, journals, magazine and understand the problem. It would have been clearer had it
been some readings through more journal, e-resources and books. The researcher has
limited his research as he has to undergo through unavoidable academic activity and
prepare for his mid-semester exams. As the researcher is also new to library he has doubts
 BEFORE MEMORY FADES: A REVIEW

regarding books of the particular topic. The researcher has limited resource regarding the
field work to finalize the project. But still with his hard work the researcher has managed
to complete his project.

1.4 Scope of the Study

1.5 Nariman and his Ideas of Professionalism

In Chapter IV, Lawyers and the Legal Profession, Nariman quote Clarence Darrow, who says
that the law provides that every defendant regardless of the charges is entitled to a lawyer to
defend him, especially when the entire world is against him. This clearly shows Nariman’s
understanding of being a lawyer, and a professional one at that. This is in many ways similar to
Ram Jethmalani’s idea of being a lawyer. Ram Jethmalani has many times stated defending his
decision to defend Manu Sharma[1] that it is imperative that there is a lawyer to defend every
accused, be it someone accused of smuggling or terrorism. [2] He, also once told Karan Thapar,
who was interviewing him, that if he did not defend Manu Sharma, one day Thapar would be
behind bars and no one would turn up to defend him. [3] Similarly, Nariman believes that it is his
duty to defend any side, in any case, which approaches him, regardless of his own personal
beliefs, the seriousness of the charges or the probability of his prospective client of winning or
losing the case.

In Chapter XVI, A Case I Won, But Which I Would Prefer to Have Lost, Nariman talks about
the Second Judges Case, wherein he represented the petitioner, Supreme Court Advocate on
Record Association. He was, in a way, trying to get the precedent set by the Apex Court in the
First Judges Case over ruled. In the First Judges Case, the Supreme Court of India had held that
the opinion of judges, including but not limited to the Chief Justice of India, was to be sought by
the Government of India, before the appointment of judges to the higher judiciary, but it would
still not in any way be binding. This translated into the Government of the day having a free
hand at not only the judges, which it consulted for such an opinion, but also finally deciding on
 BEFORE MEMORY FADES: A REVIEW

as to whether it wanted to take cognizance of the opinion thus received. This, then, lead to a
serious manipulation by the Government in terms of the judges which were appointed. For
instance, in 1985, P.N. Bhagwati, the then Chief Justice of India and the judge who pronounced
the judgment on behalf of the majority in the First Judges Case, was shown the stick of precedent
(his own judgment) while turning down his recommendations regarding the appointment of
judges.

Mindful of the fact that even if he were to win the Second Judges Case, the outcome might not
necessarily be the one he sought to achieve (transparency), he fought the case. He won the case
for his clients. The Court was reluctant in giving the Chief Justice of India the ultimate authority
under the veil of Judiciary’s independence after the experience with Chief Justice A.N. Ray. In
1977, Justice Ray made transfers of High Court judges not based on the extra workload certain
courts had, but because those judges had given judgments which were contrary to the very
interests to the Government of the day. This rule was of course before the ruling of the First
Judges Case, and was prone to favouritism creeping into the appointment of judges as the
ultimate authority was to rest in one person, i.e., the Chief Justice of India.

So, as an answer to the problem, the Apex Court, in its wisdom, decided to bestow the
prerogative on not one single individual, but a collegiate of three senior most judges of the Apex
Court. The probability of these three being manipulated, however, doesn’t seem to be much
lower than that of the Chief Justice of India alone. Hence, wherein Nariman did know that his
pursuit should be to devise a proper institutionalized framework of appointment, which is both
transparent and efficient in its working, he blindly went in for winning the case. Later on, in the
Third Judges Case, the Supreme Court again makes the same error when it increased the strength
of the collegium to five senior most judges of the Supreme Court.
 BEFORE MEMORY FADES: A REVIEW

Nariman probably laments the judgment more in retrospect than he would have ever imagined
while fighting the case. He feels that although the system has been more or less efficient in
making sure that the best of jurists make it to the Apex Court, he has three problems with the
current system and the way it has worked out so far, which in turn make him feel that he would
have preferred to have lost the case in the first place. Firstly, in over 60 years, there have hardly
been any women judges. [4] Secondly, there is no empirical evidence supporting the
unwarranted assumption that the five senior most judges are necessarily the most competent and
wise with respect to the appointment of judges. He thinks that the consensus of all the judges
should be considered in the matter of appointment. Thirdly, there is no efficient database which
can be referred to at the time of appointment so as to have a look at the record of the judges at
various High Courts, which would serve as the best criterion for their appointment at the highest
judiciary. It would not be unfair on him, if the paper is to presume that he knew of these three
prospective problems emerging, in case he were to win the Second Judges Case, while he was
taking up the aforementioned case as well. This in turn establishes that he himself never
personally believed in the petitioner’s cause, but only took it up to fulfill his obligation as a
professional lawyer.

The Righteous and Frank Nariman

In Chapter VIII, The Internal Emergency, Nariman talks about how he felt during the
emergency. One day after Indira Gandhi, the then Prime Minister, imposed the internal
emergency, i.e., on 26th June, 1975, Nariman resigned from his post of Additional Solicitor
General to mark his protest to the unethical move by the then Prime Minister. Since, the news
was censored and only foreign media published it, it did not even create “ripples” to the scenario
in India.

He recalls how he had to struggle in finding accommodation in Delhi post his resignation. He
says that in Delhi, people go the way the wind blows. People were afraid to let out their houses
 BEFORE MEMORY FADES: A REVIEW

to Nariman as he had dared to go against Indira Gandhi. He recalls that for several weeks his
wife had to hunt for someone who would let his family in their house. He further recalls a
conference, in which he had been invited to before the emergency was imposed, in capacity of a
law officer of the Government of India. Later, the organisers pressed on their request to invite
him, in his personal capacity as a senior lawyer of the Supreme Court, regardless of the changed
circumstance. When Nariman reached there, he was told how the organiser’s son, a law student,
had been wrongly detained. Nariman was informed by the anxious father that his son was
detained under the Maintenance of Internal Security Act (MISA) because of his opposition to the
idea of the teacher’s idea of the entire class going on a march to support Indira Gandhi’s 20 –
Point Programme on a weekday, at the cost of missing classes. This lead to the district magistrate
booking the young boy for being a threat “to the security of the State”. Nariman tells how the
bank after “many anxious moments” was finally returned to the parents.

“With such repressive laws, so oppressively implemented, the people looked up to the Courts.
But as it ultimately turned out, they looked in vain.”

He further goes on to show how the then Attorney General of India in the ADM Jabalpur case
said that, if his arguments were to stand, a law abiding citizen who was being targeted by a
police officer only because of personal vendetta against the former, would have no judicial
remedy during the emergency. Thus, Nariman shows how the suspension of the Fundamental
Right to Life guaranteed under Article 19 and Article 21 could lead to making the powers
bestowed upon the Government and its officials, unabridged to the extent that there would be
absolutely no way to check abuse of the same. He then asserts that if in a country like India, a
law is passed, which enables the executive to misuse it, the executive will most definitely do it.
In such a situation, he believes it is the Court’s duty to not let the people down in such a
deplorable situation and that is why he calls the aforementioned judgment “deplorable” in itself.
 BEFORE MEMORY FADES: A REVIEW

Furthermore, he goes on to praise Justice Khanna’s dissenting opinion in the famous judgment.
He says that Justice Khanna’s attempt to hold that Right to Life and Liberty are Natural Rights,
not rights bestowed upon men by a Constitution, but inherent to all men by virtue of them being
humans, cannot be praised enough. He praises Justice Khanna for being upright and not bowing
down to the tyranny and obvious might of Indira Gandhi. He also condemns Indira Gandhi’s
actions of promoting Justice Beg to the post of Chief Justice of India because he was close to
him, when clearly, Justice Khanna had the best and natural claim to the post.

This establishes that Nariman himself was a man of strong will power, who would condemn
whatsoever and whomsoever was wrong, without caring much for the consequences.
Furthermore, it is quite clear that he was a strong critic of Indira Gandhi. This also establishes
that he has been fairly frank in his autobiography as opposed to being diplomatic and shrewd like
a plethora of other authors.