Page |1

CHAPTER 1

INTRODUCTION

One of India’s most prominent lawyers, Fali S Nariman was born on January
10, 1929. He is a distinguished Constitutional jurist and a senior advocate at the
Supreme Court of India since 1971. He was made the President of the Bar
Association of India in 1991 and has remained as the President since. He has
served as the Solicitor General of India since May 1972 to June 1975. Fali S
Nariman is a Member of the India Parliament (Rajya Sabha). Since October
1994, he has served as the President of the International Council for
Commercial Arbitration (ICCA); and Vice-Chairman of the International Court
of Arbitration of the International Chamber of Commerce (ICC) in Paris since
1989. He has also served as a member of the London Court of International
Arbitration (LCIA) since 1988. Mr. Nariman is widely reputed for his expertise
in constitutional law, international law, human rights and international
arbitration. His many distinguished former positions include Chairman,
Executive Committee of the International Commission of Jurists (ICJ), Geneva,
1995-97, and President of the Law Association for Asia and the Pacific
(LAWASIA), 1985-87.He was also the Additional Solicitor-General of India
from May 1972 to June 1975, and resigned his office the day after the
proclamation of the Internal Emergency of June 26, 1975. In January 1991, the
President of India awarded him the Padma Bhushan, India’s second-highest
Civil Honour, in recognition of his distinguished service in the field of
jurisprudence. No more than four or five people received this award every year.1

He was born in Rangoon to Sam Bariyam ji Nariman and Banoo Nariman in the
General Hospital. He grew up in Rangoon (then capital of Burma) as an only
1
Retrieved from : < http://www.loc.gov/bicentennial/bios/democracy/bios_nariman.html> on 10-10-2014 at
00:26 IST.
 Page |2

child, in the 1930s. Nariman has admitted to being a spoilt child and has also
described his childhood as a cloudlessly happy one.

Nariman started his education in a coeducational school in Burma. After

spending just one year at that school, Nariman was moved to the Diocesan Boys
School. As Nariman puts it, ‘the clouds gathered’ when he was 12 years old in
the December of 1941 and the Japanese bombed Rangoon and invaded and
quickly conquered Burma. He talks about witnessing intense and incessant
bombing and having to spend a lot of time in the makeshift air-raid shelter in
the garden of their home.

After this incident, Fali and his family moved north to Mandalay for what he
thought would be a brief sojourn. This was based on the advice of the then
Governor of Burma, Colonel Sir Reginald Hugh Dorman-Smith, who had very
confidently proclaimed to Nariman’s father, Sam Bariyam ji Nariman “Don’t
worry Sam, we will get rid of these Japanese in a month or two.” Nariman
Senior had taken the Governor’s word, because he was, after all, the chairman
of the War Council of Burma. What the Governor did not account for was the
swift and fierce invasion by the Japanese Army which cut the Army off from
Burma.

The Nariman family was, as a result, forced to embark on a long, overland

journey to India, carrying only those few possessions that they had travelled to
Mandalay with. The journey took 21 days which Nariman describes as being
anxious and eventful for his parents but being very memorable for him. He talks
about how they travelled through the frosts on bullock carts and by country boat
and covered mountainous terrain by foot and doolies.

Nariman describes his arrival in Delhi as the first turning point of his life. He
was living as a refugee from Burma, having been uprooted from his hearth and
home.
 Page |3

He talks about how his parents were having a slight difficulty looking for a
school for him since he had been uprooted in his seventh standard. He was
finally admitted to the 1942-43 term in the Junior Cambridge class of the
prestigious Bishop Cotton School in Shimla.

Nariman talks about his principal in school, who used to bid farewell to his
students who passed out of school, with the same dismal words, “my boys, I
wish you all a life of difficulties.”2

Nariman says that at that point, they all thought it was a cruel thing to say, and
that they even swore at him under their breaths. But after nearly 80 years of
experience in another school, the hard school of life, Nariman was convinced
that his words had the merit of wisdom. He says, “When you meet difficulties
early in life, the way in which you confront and overcome them helps to build
your character.”3

Nariman admits to being a “namby-pamby” the two years that he spent in

Shimla. He passed his Senior Cambridge examination with a first class. He
admits to being quiet proud of that.

After school, he joined the very famous till date, St. Xavier’s College in
Bombay as an Arts student. He spent 4 years in the college and graduated from
there. He passed out with B.A. (Hons.) – not first class, but second class, with
history and economics as his principal subjects.

After college, Sam Nariman was keen on having Fali write the ICS (Indian Civil
Services) Examination, which was only conducted in England in those days.
Fali knew that his father could not have afforded the expense of him going to
London, so he chose to decline the opportunity. He mentions how at that time,
unlike today, there were very few career options for a second class Arts student,

2
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 21.
3
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 30.
 Page |4

particularly one who wasn’t conversant with mathematics or any of the

sciences. He says that the last refuge for a student like him was law, which is
what he did. He joined the Government Law College in Bombay.

He says that the main reason that he enjoyed his “two years and a little more” is
because of three part-time lecturers, all of whom were practicing lawyers at the
Bombay Bar. These were – Yeshwant V. Chandrachud, who went on to become
the Chief Justice of India, Nani Palkhivala, and Jal Vimadalal. He says that in
those days, one did not learn so much in law colleges, but with the help of these
three lecturers, he and his classmates not only imbibed legal knowledge, but
also learned an enduring love for the law. He owes his passionate desire to learn
the law to these three great teachers.

When he talks about his “two years and a little more” 4 at GLC, Bombay, he is
talking about the 9 month where he was named a Fellow to the college and had
the privilege of giving private lectures to the students.

Nariman started his career with a law practice in the Bombay High Court. After
practicing for 22 years, he was appointed as a Senior Advocate in the Supreme
Court of India in the year 1971, a position he still retains. He has been quoted as
saying “My senior’s senior, Jamshedji Kanga was my mentor. He was like a
father figure to me. He died at 93 and he is the one, who at the age of 92 told me
that he was still learning. He had a tremendous memory, and so does my son
Rohinton.”5

Fali Nariman argued in favour of Dow Chemicals in the infamous Bhopal Gas
Tragedy case, which he admitted was a mistake in the recent times.

Fali Nariman is married to Bapsi F Nariman since 1955 and the couple have two
children, a son and a daughter. Their son, Rohinton Nariman is a highly
4
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 69.
5
Retrieved from : < http://barandbench.com/conversation-with-the-livin-legend-of-law> on 11-10-2014 at
12:32 IST.
 Page |5

successful lawyer himself, having served as the Solicitor General of India from
2011 to 2013.
 Page |6

CHAPTER 2

AN ASSESSMENT

2.1. Is the Truth of the Story actually the Truth of the Generation, the
Culture and the Times?

Before Memory Fades is not only a book, it is an excellent bit of craftsmanship.

It is a great deal more than a sequential record of a famous legal advisor and
modest individual's fruitful life set in India in early 50s-60s. It is a work of a
storyteller whose perceptions about individuals and circumstances give an
exceptional understanding into the legitimate calling, from the early years of
Independence when a youthful Fali S. Nariman joined the Bombay Bar and did
“more viewing than contesting.”6

It is an original illustration of a phenomenal life existed so normally and is

considerably more than only a gathering of tales and reflections on the
occasions and individuals that have filled his existence. Fali S. Nariman has
been a standout amongst the most conspicuous legitimate lights and has
assumed a huge part in the conclusion of different court cases and like his senior
Nani Palkiwala, he has been an extraordinary executor of worldwide human
rights development. He is recognized as an Indian Constitutional law specialist
and senior supporter to the Supreme Court of India.

Throughout the decades, he has accomplished the status of a superior push

whose perspectives are not just heard by those in the passageways of force,
additionally regarded. Before Memory Fades presents his existence travel right
from his adolescence in Rangoon to the present. Beginning with his
developmental years, when he had the favourable luck to connect with
numerous prominent judges and supports, Fali S Nariman proceeds onward to
manage a wide mixed bag of paramount subjects, for example the sacredness of
6
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 13.
 Page |7

the Indian Constitution and endeavours to mess with it, critical cases that have
made a conclusive effect on the country, particularly on the translation of the
law, the relationship between the political class and the legal, the malignancy of
defilement and how to battle this hazard and so on.

This autobiography is a discourse on the most essential court cases like

Shankari Prasad (1951), Sajjan Singh (1965), Golaknath (1967), Keshavananda
Bharti (1973), and Minerva Mills (1980) which laid the key support of the
Indian Constitution. Nariman clarifies how the legal managed these changes and
held that Fundamental Rights structure a part of the ‘essential structure’ of the
Constitution which can never be altered. Nariman reviews a portion of the most
touching family assumptions, when he was offered High Court Judgeship at the
age of 38 however declined the honour for monetary explanations. From that
point his girl Anaheeta told Bapsi (Nariman's wife) “Mummy, please advise
daddy to acknowledge; I make a guarantee to i won't use an excess of cash, and
will eliminate chocolates and sweets on the grounds that I might like him to be a
judge.” A long time later, Anaheeta exhibited Fali a toon picture which helps
Nariman to remember "The Judge You Might Have been”7 This life account
gives a definite knowledge of the National Emergency in 1975, when he was the
Additional Solicitor General of India. Fali reviews of the aforementioned days
as twelfth June 1975 when Justice Jagmohan Lal Sinha of the Allahabad High
Court maintained the judgment in the race request of documented against Indira
Gandhi by Raj Narain where she was held liable of degenerate practice and
consequently was excluded from holding any open office.

On 22nd June 1975 a bid for stay to the Allahabad High Court judgment was
recorded after the get-away seat before Justice V. R. Krishna Iyer. Nani
Palkhiwala contended and got the judgment saved, however on 24th June 1975
a contingent stay request was conceded. Fali S. Nariman describes his own

7
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 219.
 Page |8

particular disobedience against absolutist administer when he surrendered from

the post of Additional Solicitor General of India contrary to the announcement
of Internal Emergency in 1975 by the Indira Gandhi government, being the
main open officer in the nation to have enlisted his dissent against the
concealment of common emancipations. Nariman affirms the commitment of a
valiant Judge Justice H.R. Khanna, (the then Second Senior Most Judge) on
account of Adm. Jabalpur (1976). Khanna knew when he marked the decanting
judgment, that he was transferring ownership of his destiny boss justice ship.
Equity Khanna surrendered in a burst of wonderfulness when equity Beg
superseded him. That is the explanation for why still today Justice H.R.
Khanna's representation hangs in the Court where he sat (Court No 2.
Incomparable Court) says Nariman. While perusing Nariman's book, one can
sense that that the book is a life account as well as portrays India's political and
sacred history.

Nariman the lead direct for the Union Carbide Corporation gained intense
reactions while speaking to the organization. Tribune des Droits Humains
portrayed him as a 'Fallen Angel', addressing his notoriety as a human rights
activist. In this personal history Nariman has recreated the letter that he
composed according to the distributed article in which he shields himself by
expressing that the proposal that legal advisors who are human rights activists
ought not acknowledge briefs of the aforementioned who “maltreat the human
privileges of others', is unfeasible and loaded with grave outcomes as it puts a
just about unimaginable load on the legal advisor of prejudging blame; and
(more vital) it blocks the individual accused of encroaching the human
privileges of an alternate, (for example one blamed for homicide) the right to be
shielded by a 'legal advisor of his decision" - in my nation, an ensured
constitutional right.”8

8
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 221.
 Page |9

Nariman additionally recollects those days when he was the standing direction
in the Supreme Court for the state of Gujarat in a PIL recorded for the benefit of
the tribal’s who were removed by the climbing stature of the Narmada Dam in
Gujarat. The point when Nariman experienced press reports where Christians in
certain part of Gujarat were been pestered and their Bibles being smouldered, he
wanted the then Chief Minister from Gujarat Mr. Keshubhai Patel to stop these
demonstrations of grave treachery. Inspite of the confirmation given by the
Chief Minister the circumstance declined, now Bibles as well as Churches in
different part of Gujarat was pulverized.

In December 1998 Nariman gave back where its due and said that “I might not
show up for the state of Gujarat in this or any possible matter.” 9 Like Palkiwala,
throughout Emergency of 1975, he too never traded off with his principals. In a
standout amongst the most critical cases (Second Judges Case) chose by the
Supreme Court Nariman showed up and won, “A Case I Won – But I Would
Prefer To Have Lost”.10 Slamming his own particular win, Nariman said “I don't
see what is so uncommon about the first five judges of the Supreme Court. They
are just the first five in position of errand – possibly in prevalence of
intelligence or capability. I see no excuse for why all the judges in the most
elevated court ought not to be counselled when a proposal is made for errand of
a high court judge (or a famous promoter) to be a judge of the Supreme Court. I
might propose that the shut circuit system of five judges ought to be
disbanded.”11

The point when a life account kept in touch with it indicates some things: one, it
must be shorn of unnecessary legalese and thusly open to the cognizant native
of the country; two, provided that it doesn't titillate or scandalise, it should have
huge substance to make her consider the individuals, the occasions and the

9
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 236.
10
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 245.
11
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 113.
 P a g e | 10

cases delineated; three, it must raise applicable issues identified with the part of
the legal versus the official and the authoritative capacities of the state and the
effect of the three homes of majority rule government in the lives of the natives.

Fali Nariman’s Before Memory Fades scores on all focuses in making grasp on
perusing and constraining a re-think on a few suspicions that one has about the
lawful system in India. To peril the written work of a life account is the long for
any individual who has been animated out in the open life. Fali Nariman,
previous Additional Solicitor General of India (Asgi), best known for his
defence of Union Carbide against the Government of India in the Bhopal Gas
Tragedy case, has been a member in / witness to a portion of the heading cases
to precede the legal in the previous four decades; cases in which the judgements
have been expansive since they have thought about the issue of the legitimacy
of Constitutional corrections; cases he was connected with in his concise
residency (May 1972 to June 1975) as the Agsi; his own defence of Union
Carbide which he has displayed sparingly and without unmistakably looking to
defend his own particular part in it by handling the open deliberation with Prof
Upendra Baxi in the pages of the diary ‘Seminar’, to whom he benevolently
gives the last word in the section which manages the case. To a lay onlooker
who has small to do with the lawful hardware of the country, and whose
recognition with it is limited to the verbal confrontations concerning these cases
in the print and electronic media just, the depiction demonstrates a viable focus
de flight for getting an understanding into the workings of the Indian legitimate
framework. That itself makes the book a beneficial read.

All the more essentially, Nariman investigates some exceptionally petulant, up

'til now uncertain issues concerning legislation and the legal in India:
fundamentally, the constitution of the Bench in and choice strategy for the
Judges of the Supreme Court of India, wherein the obstruction of the Executive
has thrown shadows on the freedom of the Judiciary. Furthermore the right of
 P a g e | 11

the two Houses of Parliament to revise the Constitution. In actuality, while

contending out the separate parts of the Executive, Legislature and the
Judiciary, Nariman plainly bats in favour of the independence/ incomparability
and of Judicial Governance therefore: “The Constitution, as drafted and as it
exists today, has put the judges of the incomparable legal in the driving seat of
Governance – Governance with a capital G.”12

With respect to the Fundamental Rights, he takes the noteworthy stand that the
opportunity of the resident is not gave by the Constitution of India, yet ensured
by it. Opportunity is essential and the Constitution is it does protect; hence, the
Fundamental Rights of the native can't be traded off on any number. This
conviction is so solid in him that it accelerated his abdication, in dissent, from
his post as Agsi when the interior crisis was announced by Indira Gandhi in
1975 and all civil emancipations of the subject were suspended.

Nariman reviews for the more youthful era the scope of the decree of
Emergency of June 26, 1975. Under Article 352 of the Constitution, the
Presidential Order issued the following day under Article 359 suspended the
right of all detenues to uphold any of the rights gave by Article 14 (the balance
proviso) and Articles 21 and 22 (shield of particular emancipation). All rights
presented by Article 19 (right to flexibility) stood immediately suspended with
the affirmation of Emergency. Principal — the same number as nine high courts
the nation over, incorporating those of Allahabad, Bombay, Delhi, Karnataka,
Madhya Pradesh, Punjab and Rajasthan, held that despite the encroachment of
the Emergency and the Presidential Order, courts were enabled to inspect if
requests of confinement were as per the Maintenance of Internal Security Act
(Misa) under which the detenues were kept. In their praised judgment, the nine
high courts decided that they could issue writs of habeas corpus (actually, a writ
charging an individual to be carried in the eyes of a judge to explore the legality

12
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 300.
 P a g e | 12

of his or her detainment). Despite the way that their judgments were toppled
hence by the Supreme Court, the high courts did bark and tore open the locks
braced on individual emancipation et al by the declaration of Emergency.

What is absent in Nariman's depiction, nonetheless, is the agenda of names of

the judges in the nine high courts at the important time. One of the lessons of
the Emergency Nariman rackets into our bones is not to depend on protected
functionaries who, in his perspective, fizzled the individuals — pastors of
government, parts of Parliament, the vast majority of the judges of the Supreme
Court, notwithstanding the honourable special case of Justice H R Khanna. The
saddest sample Nariman highlights is that of the President of India who
promptly consented to sign the decree in the night of June 25, 1975, even soon
after the Cabinet thought about it. Nariman did not gave a genuine or fitting
picture of the circumstance rather he his presumptions or sees on the crisis
circumstance passing up a major opportunity a portion of the most imperative
actualities about the situation. Three years after the fact, after the Emergency
was eradicated by the prevalent will of the electorate in March 1977, the 44th
protected change was deliberately established to announce that the president
couldn't sign a declaration of Emergency unless the choice of the Council of
Ministers was imparted to him in composing!

Nariman includes that he has dependably felt that this revision on June 20,
1979, was an acknowledged articulation of parliamentary doubt of India's most
astounding functionary — the president. Spiced by stories and raconteur, Before
Memory Fades has its lighter minutes particularly when Nariman discusses the
legal counsellors and judges he has worked with. His record of their psyches
and working styles is bolting, and, all around, motivates trust in the soundness
of legal frameworks in India. His most elevated honours, however, are saved for
two Chief Justices of the Supreme Court: V R Krishna Iyer, who consistent with
him served to humanise the lawful framework – especially in the field of
 P a g e | 13

criminal law and penitentiary change and K Subba Rao who stood for the
transcendental nature of Fundamental Rights and furnished the right to security
of a singular a little yet secure toehold in the section of essential rights. In his
admiration for them, he doesn’t try to neglect their defects yet looks after that
judges are people and the individuals, for example stars in the atmosphere, have
spots. Regardless of such flaws they gleam. It is to the credit of these two
incredible men, that in the wake of considering their frailties, they sparkle, and
gleam splendidly, for instance the two pointers in the northern sky.

While giving his brutal feelings on the circumstances overall in the nation
Nariman has tried to lighten up the bookworms’ inclination by saying some of
his personal humorous incidents occasionally. Substantial stuff it likely is.
Anyhow the collection of memoirs is famously intelligible as it follow the life
and vocation of Nariman from his conception in Burma to the ready age of 80
also, with smooth wit and a simple feeling of humour. He goes simple on the
parts of his particular life, furnishing the nuts and bolts of a life decently
existed, encompassed by family and companions. As befitting an open figure
there are no affections he imparts to his followers and the centre all around is on
social and expert communications. The book is checked by his respectfulness
and tolerability as he gives revolting acclaim to those whom he appreciates and
has a high respect for, however shuns naming those about whom his conclusion
is not exactly agreeable. The dedication of Nariman to the explanation for social
equity, (Union Carbide, in any case), his admiration for the lawful framework,
his firm confidence in opportunity as a human esteem in itself, his confidence in
legal activism and the Constitution, his adoration for mettle of conviction in
partners and his own particular feelings, his peaceful tribute to non-roughness
and lowliness, his savviness, gleam through the pages.

Especially touching is his reverence for Jawaharlal Nehru whom he gives the
penultimate word in the life account keeping in mind the end goal to centre
 P a g e | 14

upon the common nature of India. Secularism is unforgettable to him, as he

fortifies its legitimacy in the present situation, “I have never felt that I existed in
this nation at the sufferance of the larger part. I have been raised to think and
feel that the minorities, together with the greater part group, are vital parts of
India. I have existed and thrived in a mainstream India. In the totality of time, if
God wills, I might additionally want to perish in a mainstream India.” 13 With its
rich scholarly and social thunder, Before Memory Fades is a confirmation to the
learned strengths that go into the making of the country to a nation.

2.2. Significant People and Events in Nariman’s Career

Before Memory Fades stands out from conventional narrations of personal and
professional success for the reason that Nariman has credited his
accomplishments to some life-changing decisions and events, along with
significant people who influenced him in his professional sphere, rather than
personal drudgery. These events and people have been recounted by him in the
form of anecdotes throughout the autobiography. Nariman attributes most of his
success to Providence. He says, “ Whether you do or do not believe in destiny,
be sure that – out of the blue – some stranger, some unknown person will reach
out to you and give you a helping hand as you journey along the rough roads of
life.”14

His narration of career and its turning points involves a number of personalities
and events, which played a fundamental role in teaching him the lessons of life.
One such is Sir Jamshedji Kanga. Fali entered the most prestigious chambers of
the Bombay High Court in November, 1950. His father had spoken about him
to A.D Shroff of Tatas. Shroff was the Chairman of New India Assurance Co.
Ltd. He, in turn spoke to Dinsha Daji, senior-most partener in Payne & Co., a
leading solicitor’s firm in Bombay, and Fali was permitted to sit there as a

13
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 318.
14
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 42.
 P a g e | 15

trainee. After working for a year as an apprentice with Kaikobad Lala, Dinsha
Daji helped him to secure entry into the aforementioned chambers of Kanga.
This was the most important prop to Fali’s professional career.  Nariman 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”.15 

In his time in the Court, Fali was fortunate to have met and interacted with
many judges who were kind and considerate to juniors. One such was Justice
Coyaji, who would always encourage solicitors to brief juniors to appear in
cases. Fali narrated an anecdote describing a court scene at the time he was a
junior at the Bar. A senior advocate was appearing solo in a ‘bulky’ application.
Justice Coyaji smiled at him and said “What Mr. [so and so], such a heavy case,
and you are appearing alone?”16 Promptly, the solicitor instructing the senior
took the hint and one of the youngsters in the court, simply looking intelligent,
was briefed to appear with the senior. This enabled amateurs such as Fali to
earn a small fee. At the beginning of their professional career, young lawyers
such as Fali would look forward to such opportunities, which he described as
‘crumbs from the judge’s table’.

Another influential judge of his time was Justice Sunderlal T. Desai, who would
always embrace a word of praise for the arguing junior. This served as a
tremendous boost to the latter’s morale. Once, a senior advocate said in his
argument “matters are not as simple as my young friend has made out. At this,
Justice Desai responded “But that is the art of advocacy: to make simple what is
complicated and not vice versa”.17

15
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 134.
16
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 57.
17
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 89.
 P a g e | 16

Justice MC Chagla has been described by Mr. Nariman as the brightest and the
best of judges in his time. He had a fine mix of all qualities of an ideal judge.
He was highly intellectual and very judicial. Moreover, his treatment of juniors
was exemplary. Fali was awed at the colossal graciousness and knowledge of
Justice Chagla. In an occasion when Fali was just a year old in the bar, Nani
Palkhivala 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. Palkhivala 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
judgment had been delivered. Nani interrupted but Chagla who never liked
interruptions when he was dictating judgments, said “I don’t think, Mr.
Palkhivala, you can add anything more to what Mr. Nariman has so well
presented”.18

Such trivial, yet focal instances in Fali’s initial years at the Bar proved to be a
major stimulus to his success. An important turning point in Fali’s professional
life was during his years at the Bar in Bombay. He was briefed by his good
friend, Attorney Dharmsingh Popat (senior partner of M/s Mulla & Mulla,
Solicitors), in a cause celebre in the Supreme Court. It was the ‘famed’
Golaknath case- Golaknath v. State of Punjab in the year 1967. This case was
famed because a bench of 11 judges was constituted to hear this case.

Under the Constitution of India, courts are empowered to invalidate legislative

enactments and executive orders if they violate any part of the fundamental

18
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 108.
 P a g e | 17

rights guaranteed in Part III. Part III is the bill of rights. But are courts
empowered to adjudicate upon the validity of constitutional amendments?19 On
this question, the Constitution is silent. This problem was first posed in
Shankari Prasad (1951) and Golaknath (1967), and finally in Kesavananda
(1973). Fali appeared as a junior counsel in 1967 for a group of petitioners in
Golaknath- assisting both A.K Sen and Nani Palkhivala. He has described the
political state of affairs in the country during that time. The ruling party had
more than two- thirds majority in each of the two houses of Parliament and yet
Justice Subbarao who presided over the bench , managed to forge a narrow
majority for the view that none of the fundamental rights were amenable to the
amending power.

Six years later in 1973, a still larger bench of 13 judges of the Supreme Court
was constituted, presided over by Chief Justice S.M Sikri to consider the
validity of these amendments, but more basically to consider the correctness of
the decision in Golaknath. The case goes by the name of Kesavananda Bharati
or the Fundamental Rights Case. At the time this case was heard, Fali was
already the solicitor- general of India, and since he had appeared as counsel for
petitioners in Golaknath, he could not appear for the government in
Kesavananda. It was held by the court that although no part of the constitution,
including fundamental rights, was beyond the amending power, one thing was
certain viz. that the basic features of the Constitution could never be abrogated,
even by a constitutional amendment.

Five years after the Basic Structure Theory was propounded, Parliament gave
implicit recognition to it- in the Constitution Forty-Fourth amendment act,
1978. It provided that the fundamental right of life and liberty guaranteed by
Article 21 of the Constitution could never be suspended, simply because the
right to life and personal liberty were basic to the constitutional framework. The

19
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 256.
 P a g e | 18

basic structure theory was hence woven into our constitutional fabric.
Emphasizing the clout of the Supreme Court verdict, Fali quotes the words of
Chief Justice Warren Burger of the U.S.A Supreme Court, interviewed by Bill
Moyers in 1986. Burger said “Congress can review us and change us when we
decide a statutory question, and frequently do. But when we decide a
constitutional issue, right or wrong, that’s until we change it. Or, the people
change it. Don’t forget that. The people made it and the people can change it.
The people could abolish the Supreme Court entirely by constitutional
amendment”.20 Fali agrees with his opinion. He says Judicial Review will
remain an integral part of Indian Constitutional law and practice, simply
because the Supreme Court, relying on popular opinion has said so. Primary
control on governmental activity in this democracy is with the people. The
power which the Supreme Court exercises ultimately rests upon their tacit
approval. Fali describes the basic structure theory as an “auxiliary precaution”.
He says that the theory was response of an anxious activist court to the
experience of the working of the Indian Constitution during the first 23 years.

Another event that left a profound impression on the life and career of Fali was
the infamous case of Bhopal Gas Tragedy. He was the lead counsel for the
Union Carbide Corporation. Fali received severe reproach for arguing in favour
of the company. He was described as a ‘Fallen Angel’, questioning his
reputation as a human rights activist. In this autobiography Nariman has
reproduced the letter 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

20
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 346.
 P a g e | 19

to be defended by a “lawyer of his choice” - in my country, a guaranteed

constitutional right”.21

In an interview given to The Hindu, when asked if he regretted taking the Union
Carbide brief, Nariman answered, “…because I thought this was one more case
which would add a feather to my cap. I mean one is always ambitious at that
age. But I found later – but then it's too late, one can't walk out of the case one
has already taken up – that it was not a case, it was a tragedy. And in a tragedy,
who is right, who is wrong etc., all becomes marred in great deal of justifiable
emotion. 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
certainly not have accepted the civil liability case which I did”.22

The most significant case decided by the Supreme Court had Fali appearing on
it. This was the Second Judges Case. Fali won the case and described it as “A
case I won – But I would prefer to have lost”. Ridiculing 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 to be a judge of the Supreme Court. I would
suggest that the closed-circuit network of five judges should be disbanded.”23

These events and people have played a pivotal role in shaping Nariman’s
professional career. As suggested in the beginning of this chapter, he places
providence at the apex of his life’s ladder. It is sheer luck, as Nariman says, that
got him to meet people like Kanga and Justice Chagla at the Bar. A man of such
stature as Nariman, who confers immense significance to other people and

21
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 245.
22
Retrieved from <http://www.thehindu.com/it-was-not-a-case-it-was-a-tragedy-nariman.ece> on 14-10-14 at
13.00 IST.House Publishers, (2013).
23
Ibid.
 P a g e | 20

events in his life, reflects highly upon his character as a self-effacing and
diffident personality.
 P a g e | 21

CHAPTER 3

CRITICAL APPRAISAL OF THE BOOK

Before Memory Fades provides a unique insight into the legal profession of an
eminent lawyer and a humble person’s successful life. It is a classic instance of
an extraordinary life lived so ordinarily owing to a collection of anecdotes and
reflections on the events and people that have been significant in the author’s
life. Though the book traces the success of the author in the legal profession,
there are certain areas that it fails to address and certain questions that remain
unanswered in the span of the book.

The author has argued the independence of Judiciary while exploring some very
contentious issues concerning the governance and judiciary in India. He has
upheld the autonomy and supremacy of Judicial Governance, substantiating
with the idea that the “Constitution of India has placed the Judges of the
Supreme Judiciary in the driving seat of Governance- Governance with a capital
G.”24

Though Nariman has argued the independence of Judiciary in relation to the

Judicial governance, his stand comes across as being a bit premature. His failure
to take into account the provisions of the Indian Constitution has led to the
ignorance of the fact that, although Judicial Review has been recognized as a
basic feature of the Constitution in certain Landmark Supreme Court judgments,
such Court Decisions can be neutralized by the Parliament by way of passing a
legislation or a rule. The Constitutional provisions clearly establish that the
power of Policy-making is different from interpretation of such policies and the
former lies with the Parliament while, the latter is a function of the Judiciary.
Only the Union Government is bestowed with the powers to legislate on matters
involving Constitution, organization, jurisdiction and powers of the Supreme

24
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 370.
 P a g e | 22

Court and High Courts of the Country (including contempt of Court), and the
fees taken therein; along with the persons entitled to practice before the
Supreme Court and the High Courts.25 Thus, in the absence of judicially
manageable standards, the courts should not interfere and leave it to the elected
representatives of the people.

In the Chapter XV of the Book, Nariman is being critical of the elected

representatives of people and the Constitutional guarantee in terms of policy-
making granted to them. He exudes that ever since 1950, despite 14 general
elections having been held along with the publicity given to the Parliament,
people generally have remained unsatisfied with the functioning of Legislative
Assemblies and the Parliament and members thereof. He also presses upon the
fact that if Judges are constitutionally not empowered with the right to govern
the Parliamentarians, politicians and bureaucrats, who claim the right to govern
on the basis of adult franchise must come up with a better record of
performance. In this course, he has failed to notice that even the Judiciary today
is equally corrupted, motivated, incompetent and politically engineered.
Nariman has expressed that, “Judges are human beings, and human beings, like
stars in the firmament, have blemishes. Despite such blemishes, they shine.”26

In the course of equating the Judiciary to bright and brilliant stars, the author
has failed to notice that Judicial Absolutism and Tyranny cannot be exercised
under the guise of Judicial Independence. Sometimes Judges are not conscious
of the extent of the power conferred upon them, or, do not have the sensitivity
to exercise the judicial restraint when warranted or, are politically engineered to
decree in favour of one side. There have been numerous cases where a
Judgment has been patently as well as latently influenced by power and status
of the people involved or the Judges have been inconsiderate to examine the
necessary background of the disputed case. Even the decisions rendered in
25
Entry 77 and 78, List I, Schedule 7, Constitution of India.
26
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 307.
 P a g e | 23

contempt cases sometimes give the eerie feeling that the status of the person
who 'scandalizes' the court may well have influenced the ultimate result. In P.
N. Duda v. P. Shiv Shankar27 (AIR 1988), a cabinet minister of the Government
of India was vindicated though he had compared the judges of the Apex Court
to anti-social elements, foreign exchange violators, bride burners and a whole
horde of reactionaries who have found their haven in the Supreme Court. The
Court held that the speech of the minister had to be read 'in its proper
perspective and, when so read, it did not bring the administration of justice into
disrepute.

In the case of Mohd. Zahir Khan v. Vijai Singh & Ors28 an impetuous yet
insignificant litigant was immediately cited for contempt, pronounced guilty and
sentenced to undergo simple imprisonment for one month when he had merely
said in a loud voice in the court “either I am anti-national or the judges are anti-
national.”29

The book seems to have failed to address the controversy over the word
“consultation” in the Article 124 of the Indian Constitution and “collegium” for
the appointment and transfer of Supreme Court Judges. The collegium system
has its origin in a series of three judgments that is now clubbed together as the
"Three Judges Cases". The “First Judges Case”, SP Gupta Case 30, declared the
“primacy” of the CJI’s recommendation to the President, bringing a paradigm
shift in favour of the executive having primacy over the judiciary in judicial
appointments.

The Supreme Court Advocates-on Record Association v. Union of India31,

popularly known as the “Second Judges Case” ushered the collegium system
and overturned the SP Gupta Judgement by establishing the role of the CJI
27
1988 AIR SC 1208.
28
AIR 1992 SC 642.
29
Fali S. Nariman, Before Memory Fades, Hay House Publishers, (2013), p. 356.
30
AIR 1982 SC 149.
31
W.P. (civil) 1303 of 1987.
 P a g e | 24

primal in nature and reduced the chances of the Executive having an equal say
in the matter. Besides, a judgment dated October 28, 1998, written by Justice S
P Bharucha at the head of the nine-judge bench, used the opportunity to strongly
reinforce the concept of “primacy” of the highest judiciary over the executive.
This was the “Third Judges Case” 32. To help solve the controversy, the NDA
Government introduce the 98th Amendment Bill proposing a National Judicial
Commission. It provided for the constitution of an NJC to be chaired by the CJI
and with two of the senior-most judges of the Supreme Court as its members.
The Union Law Minister would be a member along with an eminent citizen to
be nominated by the President in consultation with the Prime Minister. The
Commission would decide the appointment and transfer of judges and probe
cases of misconduct by judges, including those from the highest judiciary. The
author seems to have missed out on this debate while talking about the keeping
the flag of the Bombay lobby aloft on his appointment to the Supreme Court as
a Jurist.

Further, Nariman has been overtly critical about the idea of Justice. The Chapter
II of the book begins with him joining as a member of the Bombay Bar in the
year 1950. In the very same chapter, he describes the Bombay High Court
building as a magnificent structure, taking note of the different impressions of
Justice in carvings on the stone facade. Out of such embodiments of Justice,
The Victorian Ideal of Justice is described to have been depicted (in stone) as a
lady in a flowing gown, standing blindfolded, having a sword in her up-raised
right hand to threaten the wrongdoer with dire punishment for his wrongful
conduct and holding a pair of scales to weigh the evidence led by the
contending parties before the Court. Nariman mocks this depiction by exuding
that one wouldn’t be able to see which way the scales tilt if his eyes are
blindfolded, also, he won’t be able to wield the sword of Punishment with his
eyes being deliberately closed.
32
AIR 1999 SC 1.
 P a g e | 25

Further, he condemns The Victorian Ideal of Justice by writing that the delay
involved in the process of arriving at a decision will freeze the right arm
shoulder of the lady Justice, as also her left elbow, holding aloft the sword and
pair of scales. Based upon the Indian experience of what Justice ought to be,
Nariman endorses the Indian Ideal of Justice depicted right opposite to the
Victorian Ideal of Justice. The Indian Lady Justice, in contrast to the Victorian
Ideal has an unbiased vision to look intently at the ever tilting scales in her left
hand. She is described to be holding the hilt of the sword in her right hand with
its tip resting on the ground near her feet, so that her right arm and shoulder are
not frozen stiff by the necessary delay involved in the trial. She is portrayed to
wield the sword swiftly and strike the guilty party after considering the
necessary evidence. The author has upheld the Indian Ideal of Justice over the
Victorian Ideal, substantiating it with the idea that the former being clear eyed
cannot mistake or accident strike the innocent. But, at the same time, the author
has failed to appreciate the idea of Justice being unbiased, even-handed or
unprejudiced; that the whole point about the Justice Lady being blind is, that she
performs her task without fear or favour, and does not go by the appearance of
the parties arraigned.

Before Memory Fades is an enriching read as it ventures into a plethora of

conventional debates but the scope of the book does not extend to a detailed
study of such issues. The author has not substantiated each point that he has
tried to make and has disagreed on certain issues with the settled position of
law.
 P a g e | 26

CHAPTER 4
CONCLUSION

4.1. Effect of the book on Indian Legal System

Fali Nariman’s Before Memory Fades raises 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. 33
More significantly, Nariman explores some very contentious, as yet 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 cast
shadows on the independence of the Judiciary. And the right of the two Houses
of Parliament to amend the Constitution. In effect, while arguing out the
respective roles of the Executive, Legislature and the Judiciary, Nariman clearly
bats in favour of the autonomy/ supremacy and of Judicial Governance 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 the significant
stand that 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 AGSI when the internal emergency was
declared by Indira Gandhi in 1975 and all civil liberties of the citizen were
suspended.

33
Chiranjeet Kaur’s Review on the Autobiography by Fali S. Nariman : Before Memory Fades.
 P a g e | 27

Before Memory Fades is also 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.

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. Spiced by anecdotes and
raconteur, Before Memory Fades has its lighter moments especially when
Nariman talks about the lawyers and judges he has worked with. His account of
their personalities and working styles is riveting, and, by and large, inspires
confidence in the soundness of judicial systems in India.

His highest accolades, though, are reserved for two Chief Justices of the
Supreme Court: V R Krishna Iyer, who according to him ‘helped to humanise
the legal system – particularly in the field of criminal jurisprudence and jail
 P a g e | 28

reform’ and K Subba Rao who stood for the ‘transcendental nature of
Fundamental Rights’ and provided the right to privacy of an individual ‘a small
but secure foothold in the chapter of fundamental rights’. In his respect for
them, he does not seek to overlook their flaws but maintains that ‘judges are
human beings and that human beings, like stars in the firmament, have
blemishes. Despite such blemishes they shine.

It is to the credit of these two great men, that after taking into account their
frailties, they shine, and shine brightly, like the two pointers in the northern
sky.’ But the autobiography is eminently readable as it traces the life and career
of Nariman from his birth in Burma (‘I have been reliably informed and brought
up to believe that I was born on the 10th day of January 1929 at the General
Hospital in faraway Rangoon.’) to the ripe age of 80 plus, with suave wit and an
easy sense of humour. He goes easy on the details of his personal life, providing
the basics of a life well lived, surrounded by family and friends. As befitting a
public figure there are no intimacies he shares with his readers and the focus
throughout is on social and professional interactions. The book is marked by his
gentlemanliness and decency as he gives fulsome praise to those whom he
admires and has a high regard for, but refrains from naming those about whom
his opinion is less than satisfactory. Every autobiography is a credo statement of
the author and Before Memory Fades is no exception. The commitment of
Nariman to the cause of social justice, (Union Carbide, notwithstanding), his
respect for the legal system, his firm belief in freedom as a human value in
itself, his faith 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. Particularly
touching 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.
Touching, simple, sparse statements that underline the conflicts that inhere in
 P a g e | 29

contemporary India and the urgent need to declare one’s allegiances. With its
rich literary and cultural resonance, Before Memory Fades is a testimony to the
vibrant intellectual forces that go into the making of the nation today. It must be
left to the legal luminaries to evaluate the finer points of the legal niceties that
Nariman talks about; for the common reader it is instructive and enjoyable. For
students of law, it must be compulsory reading since it indicates a complete
methodology of all that goes into the making of an effective bar and bench.
 P a g e | 30

BIBLIOGRAPHY

Books

Before Memory Fades, by Fali S. Nariman, Hay House Publishers (2003)

Websites

www.thehindu.com

www.wikipedia.org

www.indialawjournal.com

www.telegraph.co.uk

Articles

Chiranjeet Kaur’s Review : Before Memory Fades