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How to be a constitutionalist: Lessons from Fali S. Nariman’s cases

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Fali S. Nariman, who died on February 21 at the age of 95 once said, a lawyer doesn’t retire, he drops dead. True to his words, Nariman was set to make a joint mention before the Supreme Court with Attorney General R Venkatramani the day he died.

Fali S Nariman(PTI) PREMIUM
Fali S Nariman(PTI)

As lawyers, we all are advocates of the Indian Constitution, but Nariman’s legacy will be his work that strengthened India’s constitutional democracy. This encompassed creating an independent and accountable judiciary, advocating the virtues of the basic structure doctrine and safeguarding the rights of minorities. A man of principles, he resigned as the additional solicitor general on the imposition of the Emergency in 1975, returned the brief of the state of Gujarat in the Narmada dam displacement matter when he realised the state government was turning a blind eye to the violence on Christians in Dang district in 1998 and candidly admitted in an interview in 2010 that he regretted taking on the brief of Union Carbide and realised only later that the Bhopal gas leak was a tragedy.

“We must strive in ways that are legitimate, and with the assistance of independent and fearless judges, to keep elected governments accountable,” Nariman wrote in an article for the newsletter, The Seminar, on the occasion of the 60th anniversary of the Constitution.

Nariman was a part of landmark cases which shaped constitutional law including Golaknath (1967), which preserved fundamental rights from infringement, Keshavananda Bharti (1973), which laid down the basic structure doctrine, Minerva Mills (1980), which clarified important aspects of the basic structure doctrine and TMA Pai (2002), which were in support of minority rights.

Here’s a look at some of his lesser-known cases, as counsel, for the state or as Amicus Curiae.

Air India v. Nergesh Meerza & Ors (1981) AIR 1829

Till Nergesh Meerza and other air hostesses challenged the employment regulations of Air India in 1980, air hostesses were subjected to a rule that they had to retire at 35 years or if they married within four years of service or on pregnancy. Such conditions did not apply to the flight attendants who were male.

In a landmark ruling on gender equality the court ruled some of the regulations to be discriminatory.

Fali S Nariman appeared for Air India in this matter. However, he did not blindly defend the regulations, but provided proposals to mitigate the grievances of the air hostesses. As noted by Justice Fazal Ali:

“In fact, as a very fair and conscientious counsel Mr. Nariman realised the inherent weakness and the apparent absurdity of the aforesaid impugned provisions and in the course of his arguments he stated that he had been able to persuade the Management to amend the Rules so as to delete first pregnancy as a ground for termination of the service.”

The proposals and suggested amendments may not meet the standards of today, but for their time they were effective in laying the foundation for the creation of a fair workspace. Perhaps the experience in this case helped Nariman later when he was one of the amicus in the Vishaka case, which laid down elaborate guidelines to prevent sexual harassment in the workplace.

Indian Express Newspapers (Bombay) Private Ltd v. Union of India (1986) AIR 515

Representing the petitioners, Nariman challenged the levy of customs duty of 15% on the import of newsprint ( 825 per Metric Tonne), which meant that some newspapers paid as much as 35.9 lakh per year for newsprint.

Nariman argued that the taxes increased the financial burden on newspapers which led to a drop in circulation, thereby violating their freedom of speech and expression as well as freedom to practice any trade or occupation. The court noted the importance of the freedom of press and held that the Centre could impose taxes on publication of newspapers only within reasonable limits and ordered the government to reconsider the decision of the levy of custom duty.

Mohammad. Sukur Ali v. State of Assam AIR 2011 SC 1222

Despite the right to a counsel being a fundamental right, inadequate or no legal representation is a sad reality of the criminal justice system.

Mohammad Sukur Ali’s case had been dismissed due to non-representation. The court stated that the a criminal case could not be decided in the absence of the counsel. The court noted that in the absence of the accused counsel the court was well within its powers to appoint an amicus for the accused.

Fali Nariman was appointed the Amicus Curiae by the Supreme Court. An Amicus Curiae or friend of the court is a person who is not a party to the proceedings but is requested to assist the court due to their expertise. While thanking Nariman, the Court noted how he brought to light the possible confusion caused by the record not reflecting the change in counsel. This led to the court noting that third party negligence could not penalise the client.

Nabam Rebia And Etc. Etc vs Deputy Speaker And Ors AIR 2016 SC 3209

In 2015, 21 Congress MLAs rebelled against the chief minister in Arunachal Pradesh. Subsequently 13 members of the assembly wrote to the Governor complaining about the Speaker and the state government. The Governor advanced the assembly session from January 14, 2016 to December 16, 2015, without the advice of the chief minister. On December 15, the Speaker, Nabam Rebia, disqualified the rebel MLAs. The next day the Speaker was removed. The disqualification and removal both were challenged in the Gauhati high court, which stayed the disqualification but dismissed the speaker’s plea that culminated in the appeal.

Fali Nariman represented Bamang Felix, deputy chief whip of the Congress party. A five-judge bench quashed the order of the Governor and unanimously held that the power of the Governor under Article 163 of the Constitution was not absolute, but subject to judicial review. The judgment also mandated that the Governor could not act as an individual but was to be independent and devoid of any political considerations.

Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.


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