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Updated: July 13, 2010 15:06 IST

A spirit of liberalism

Mukund Padmanabhan
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In what is essentially an anecdotal biography, Fali Nariman mines his memory in a “chatty way” — not searching for anything in particular in the “crammed drawer” of reminiscences but paying attention to the interesting things that could fall out of the back. As a result, Before Memory Fades is much more than a chronological account of lawyerly life. It is the work of a storyteller whose fond observations about places, people, and circumstances add up in an ineffable way to provide a unique insight into the legal profession, from the early years of Independence when a young Fali joined the Bombay Bar and did “more watching than pleading.” At the same time, the book is also a commentary on many of the most important court cases and how they have shaped the life of the nation.

Modesty

It isn't the content alone that makes this book an endearing read. This autobiography is suffused with a rare warmth and modesty, a spirit of liberalism reflected in the willingness to seriously address rival points of view, and a scholarship that is worn very lightly.

The publication has coincided with the sharp surge of media interest in the Bhopal gas tragedy case (following the recent conviction of seven persons by a local court). Nariman, who handled the civil litigation on behalf of Union Carbide Corporation, devotes a lengthy chapter to the case, but it almost entirely comprises two articles written much earlier — a 1992 response to an article criticising him in the Human Rights Tribune and a 2004 essay in Seminar. The latter has been published along with two responses, one of them a fierce attack on the author for representing UCC.

It is possible that Nariman feels that when it comes to Bhopal, he has shot his bolt. But the questions and arguments he raises in the two articles deserve to be considered dispassionately rather than being discredited or ignored solely on the basis of who he represented. Did our anger against the company, for the horrific crime, distract us from the important task of providing speedy relief to the victims? Did our disappointment with the quantum of compensation ($470 million) in the settlement detract attention from the roadblocks and obstacles in the distribution process? Do we, as the Supreme Court recommended, need to establish an Industrial Disaster Fund, to provide immediate and effective relief, given that mass tort action is so time-consuming?

Outstanding career

In his outstanding career as a lawyer, Nariman burst on the national scene in the mid-Sixties when he appeared as a junior assisting Nani Palkhivala in the Golaknath versus State of Punjab case, in which a 11-member bench of the Supreme Court held that Parliament's powers to curtail fundamental rights were violative of the Constitution. His involvement with fundamental rights and major constitutional issues continued after being appointed Additional Solicitor-General in 1971, a post he quit a day after the Emergency was declared. He defended The Indian Express successfully when its office in Delhi was threatened by demolition and appeared in the ‘Second Judges Case', which he won but would have preferred to lose. In that case, the Supreme Court assumed the power to appoint judges, thanks to a somewhat broad and fanciful interpretation of Article 124 (2). Later, the ‘Third Judges Case' would slightly modify the procedure of appointments to the higher judiciary. Nariman stresses — and correctly — that the system for appointments has not worked, whether before or after the two cases. While he is in favour of a National Judicial Commission, he thinks the real change will come only if the procedure is made transparent.

Anecdotes

The book brings alive many people in and outside the legal profession. It has anecdotes about his first boss, Sir Jamshedji Kanga, a great raconteur; a paean to the Dalai Lama and Mother Teresa, who have a chapter to themselves; a glowing tribute to Chief Justice Subba Rao, who wrote the lead judgment in the Golaknath case, which, in a way, laid the foundation for the Kesavananda Bharati case and thereby placed a check on Parliament's power of amending the Constitution; and many words about friends, peers, and others, of whom Nariman writes kindly. All in all, a compassionate work written by someone who comes across as a compassionate man.

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