BEFORE MEMORY FADES

CHANAKYA NATIONAL LAW

UNIVERSITY,pATNA

FINAL DRAFT: LAW & LITERATURE

TOPIC: BEFORE MEMORY FADES BY F.S. NARIMAN

SUBMITTED TO:

DR. PRATYUSH KAUSHIK

FACULTY OF LAW & LITERATURE

SUBMITTED BY:

KUMAR SANJEEV

ROLL NO.- 2122

BA LL. B (Hons.)

2nd SEMESTER

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ACKNOWLEDGEMENT
The researcher takes this opportunity to express his profound gratitude and deep regards to his
guide Dr. Pratyush Kaushik for his exemplary guidance, monitoring and constant
encouragement throughout the course of this thesis. The blessings, help and guidance given by
him time to time shall carry the researcher a long way in the journey of life on which the
researcher is about to embark.

The researcher is obliged to staff members of Chanakya National Law University Patna, for
the valuable information provided by them in their respective fields. The researcher is grateful
for their cooperation during the period of his assignment.

Lastly, the researcher would like to thank almighty, his parents, brother, sister and friends for
their constant encouragement without which this assignment would not be possible.

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DECLARATION

I hereby declare that the work reported in the B.A. LLB (Hons.) project report entitled

“BEFORE MEEMORY FADES” submitted at Chanakya National Law University Patna,

is an authentic record of my work carried 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.

KUMAR SANJEEV

Chanakya National Law University

6 /3/2020

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Table of Contents

1 INTRODUCTION .............................................................................................................. 6

1.1 Aims & Objectives ...................................................................................................... 6

1.2 Hypothesis ................................................................................................................... 6

1.3 Limitations of the Study .............................................................................................. 6

1.4 Scope of the Study....................................................................................................... 7

2 NARIMAN & HIS IDEAS OF PROFESSIONALISM ..................................................... 8

3 THE QUINTESSENTIAL LAWYER AND CRUSADER.............................................. 12

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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.

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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 & 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 of 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
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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

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

The research if implemented helps in making people aware of the judicial governance

and judicial activism. It will also help the legal fraternity to make people easily aware of

the implications of judicial governance and judicial activism.

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2 NARIMAN & 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 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

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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.

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

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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
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.”

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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.

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.

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3 THE QUINTESSENTIAL LAWYER AND CRUSADER

To a common person with no appraisal of legalese and niceties of the legal fraternity, “Before
Memory Fades” gives an interesting depiction of events and circumstances which raise
pertinent issues related to the role of the judiciary vis-a-vis the executive and the legislative
functions of the state and the impact of the three estates of democracy in the lives of the citizens.

More significantly, Nariman delves into the unresolved issues concerning governance and the
judiciary in India: primarily, the constitution of the Bench in and selection procedure for the
Judges of the Supreme Court of India, wherein the interference of the Executive has shrouded
the independence of the Judiciary. Nariman clearly bats in favor of the autonomy/ supremacy
and of Judicial Governance while arguing out the respective roles of the Executive, Legislature
and the Judiciary thus: “The Constitution, as drafted and as it exists today, has placed the judges
of the supreme judiciary in the driving seat of Governance – Governance with a capital G”.

With regard to the Fundamental Rights, he takes a very emphatic stand: “The freedom of the
citizen is not bestowed by the Constitution of India, but guaranteed by it. Freedom is primary
and the Constitution is its safeguard; therefore, the Fundamental Rights of the citizen cannot
be compromised on any count.” This belief is so strong in him that it led to his resignation, in
protest, from his post as Additional Solicitor General of India when the internal emergency was
declared by Indira Gandhi in 1975 and all civil liberties of the citizen were suspended. This
gesture rather shot Nariman to reach astronomical heights in terms of achieving prestigious
positions both nationally and internationally. He was, is and will continue to remain a crusader
of individual freedom and an upholder of fundamental rights.

“The most important thing is not winning but taking part; the essential thing is life is not
conquering but fighting well.” He accepted defeat and failure alike during the course of his
proceedings and career. Without indulging in self-mortification, he learnt to respect his
opponents and take criticism in his stride. This encapsulates the essence of his illustrious
career.

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Nariman recalls his brush with the case where he represented the Gujarat Government in the
matter of the Narmada rehabilitation but resigned shortly after attacks on Christians in the area
and the burning of copies of the Bible 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”.

A career that spans almost six decades has been beautifully woven by a master storyteller who
enthralls his readers by his simplicity, humility and brilliant candor. 16 With its exotic and rich
literary and cultural eloquence, Before Memory Fades is a testimony to the vibrant and
invigorating intellectual forces that go into the making of the nation today. For the common
reader it is instructive and enjoyable. “Second Judges Case” won by Nariman is a case where
the master luminary said, “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.”

The commitment of Nariman to the cause of social justice, (Union Carbide, notwithstanding),
Nariman argued in favor of Dow chemicals (the owned by Union carbide) in the
infamous Bhopal gas disaster case, which he admitted as a mistake in recent times. He was
instrumental in getting a deal between victims and the company outside court, which offered
an amount of $470 million to the victims.

Particularly enlightening is his admiration for Jawaharlal Nehru whom he gives the penultimate
word in the autobiography in order to focus upon the secular nature of India. 18 Secularism is
dear to him, as he reinforces its validity in the current scenario: he ends the autobiography by
saying these rather immortal words.

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“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.”

His eloquent word wrings inspiration and fills the readers persona with admiration for a man,
who is so simple yet so extraordinary. His reverence for the legal system, his faith in freedom
as a human value in itself, his belief in judicial activism and the Constitution, his admiration
for courage of conviction in colleagues and his own convictions, his quiet tribute to non-
violence and humility, his erudition, shine through the pages and he endears himself to the
reader for eternity. Long Live Fali Nariman!

In nutshell ‘Before Memory Fades’ is an eloquently written book by Nariman, full of very
interesting anecdotes, weaving a rich survey of Indian judges, lawyers, covering a plethora of
court cases, political situations and circumstances. It is a must read for all the aspiring
lawyers as well as students cutting across all subjects and disciplines.

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