News Excerpt:

Constitutional jurist and Senior Advocate Fali S Nariman passed away at the age of 95.

More about Fali Sam Nariman:

• Fali S Nariman was an eminent jurist of unparalleled distinction.
• Born in 1929, in Rangoon (now Yangon), Myanmar, Nariman embarked on a remarkable legal career that spans over seven decades, shaping the course of constitutional jurisprudence in India.
• He has left an indelible mark on the landscape of Indian law with his exceptional legal acumen and unwavering commitment to justice. 
• As a seasoned advocate and a respected authority on constitutional matters, Nariman had not only excelled in the courtroom but had also contributed significantly to legal scholarship, leaving an enduring legacy for generations to come.

Here is a brief recall of the notable cases of his career:

• The Second Judges Case: Supreme Court Advocates-on-Record Association v. Union of India (1993):
  • In this case, the nine-judge Constitution Bench overruled the decision in S. P. Gupta case.
    • In the S.P. Gupta case, the court had held that the Central government has primacy in matters of appointment and transfer of judges.
  • Nariman, who represented the Supreme Court Advocates-on-Record Association (SC-AORA) argued that “consultation” in the context of judicial appointments means more than merely seeking advice.
  • He stated that the advice given through consultation with the CJI must be seen as binding in order to protect the independence of the judiciary, as judges would be in a better position to determine the suitability and competence of candidates.
  • The nine-judge bench agreed with Nariman’s arguments and established the Supreme Court Collegium.
    • It’s a body comprising the 5 senior most Supreme Court (3 in 1993) judges which is tasked with making binding recommendations for appointment of judges to the apex court and High Courts.
      • The Court divested absolute executive control over the appointment of judges in the Higher Judiciary.
      • In doing so the Court laid down the collegium structure where the senior judges of the Supreme Court would recommend the appointments to the Supreme Court and High Courts.
• The Third Judges Case: In re: Special Reference 1 (1998):
  • The President of India K R Narayanan exercised his power under Article 143 of the Constitution to send a “reference” to the Supreme Court and asked for clarification on the procedure for appointment of judges following the second judges case.
  • Nariman made submissions to assist the court in this case. The court, answering the reference in 1998, clarified that the CJI must consult other judges of the Supreme Court before making any recommendations for judicial appointments.
  • Further, the Court expanded the size of the Supreme Court Collegium to five senior most judges from the existing three.
• National Judicial Appointments Commission case: Supreme Court Advocates-on-Record Association v. Union of India (2015):
  • The Constitution (Ninety-ninth Amendment) Act, 2014 amended the Constitution to insert Article 124A which created a six-person commission for judicial appointments, NJAC.
  • This commission would comprise the CJI, two other senior SC Judges, the Union Minister of Law and Justice, and two “eminent persons”.
  • Nariman represented the SCAORA in the case and argued that the NJAC would encroach upon the independence of the judiciary if the central government and the legislature were allowed to participate in the selection and appointment of judges.
  • Four of the five judges on the bench agreed with this view in 2015 and struck down the NJAC, in effect reinstating the collegium system for judge appointments.
• Parliament cannot curtail fundamental rights: I.C. Golak Nath v. State of Punjab (1967):
  • Two brothers in Punjab challenged the Constitution (Seventeenth) Amendment Act, 1964 as it amended Article 31A of the constitution. This article deals with the acquisition of estates.
  • Fali Nariman appeared on behalf of the intervenors in this case who supported the petitioners.
    • He argued that Parliament’s power to amend the constitution under Article 368 did not include articles contained in Part III of the Constitution dealing with fundamental rights.
    • A majority of six judges from the eleven-judge bench agreed with his arguments, pointing out that Article 13(2) states that Parliament cannot make a law which infringe fundamental rights.
  • Golaknath judgement was overruled in Kesavananda Bharati case.
• Rights of minorities to establish and administer education institutions: TMA Pai Foundation v. State of Karnataka (2002):
  • Nariman argued in the landmark TMA Pai case in support of minority rights to establish and administer educational institutions under Article 30(1) of the Constitution.
  • The court observed that 'minority' has to be determined on a state-wise basis and not country-wise, thus giving impetus to local diversity and case-specific definition of minority.
• Governor to act only upon the aid and advice of the council of ministers, chief minister: Nabam Rebia, and Bamang Felix v. Deputy Speaker (2016):
  • The Supreme Court in 2016 was tasked with navigating the political crisis in Arunachal Pradesh following the rebellion of 21 Congress MLAs in 2015.
    • Governor Jyoti Prasad Rajkhowa advanced the assembly session so that a floor test could be conducted to determine which party held the majority.
  • Nariman, on behalf of the house whip Bamang Felix, argued that the governor did not have the power to advance the assembly session as this could only be done upon the aid and advice of the council of ministers and the chief minister, as per the constitution. The court agreed and restored the Congress government, led by chief minister Nabam Tuki.
  • Court held that the Governor's powers to summon, dissolve and advance a session is within the scope of judicial review.
  • For the first time in its history, the Court effectively nullified the President’s rule and restored the previous State government with Nabam Tuki as Chief Minister.
    • However, Chief Minister Tuki was soon voted out of power in a floor test and the Court’s decision was reversed through political means.
• Homelessness Was Better Than Spinelessness: When Nariman Resigned In Protest Against Imposing Emergency:
  • In 1975 when the National Emergency was imposed under the Indira Gandhi Regime, Mr Nariman was the Additional Solicitor General (ASG).
  • Just a day after the imposition of the Emergency, he resigned from the position in protest against the draconian measures taken by the Government.
  • Mr Nariman also lauded the brave dissent of Justice HR Khanna in the case of ADM Jabalpur v. Shivkant Shukla.
• Bhopal gas tragedy: Union Carbide Corporation v. Union of India (1989):
  • Nariman faced criticism for defending the Union Carbide Corporation responsible for the infamous Bhopal Gas Tragedy.

Other important cases:

• He represented several states, including Karnataka in the Cauvery inter state water dispute between Karnataka and TamilNadu. 
• He also represented the State of Gujarat in the Narmada rehabilitation case. 
• He also represented the late J Jayalalithaa in  J. Jayalalithaa v. State of Tamil Nadu Case.