Abraham Lincoln in his speech dated 27th January 1838 said, “Towering Genius disdains a beaten Path. It seeks regions hitherto unexplored.” These words sum up Mr. Fali Nariman, the doyen of the Bar. For me, the Journey commenced after enrolment as a Advocate and on joining M/s. Kanga & Co. One day, I learnt that Mr. Nariman called up the Senior Most Partner.
An Ordinance was issued by the Government of India titled as Textile Undertakings Taking Over of Management Ordinance 1983. Eighteen Textile Mills in Mumbai were proposed to be Nationalised and pending that their Managements were taken over by this Ordinance. Mr. Nariman told the Senior Partner that he would like to challenge its legality and validity.
In his view, this was a direct interference by the State in the autonomy and independence of the management of these Private Textile Mills. Mr. Nariman felt that it is unconstitutional. Immediately, one of the Textile Mills approached the Firm to file a Writ Petition in the Bombay High Court. All Mills joined and thousands of typed pages forwarded to the Solicitor’s office were photocopied day in and out. The entire staff was mobilised in finalising the Writ Petitions.
Mr. Nariman appeared and with his persuasive skills convinced a Division Bench that the Respondents’ Argument that the Act proposes to achieve a broader social objective has no merit. Mr. Nariman’s arguments enabled the Bench to hold that the Act does not give effect to Article 39(a) to (c) of the Constitution of India and absent such specific words, it violates Article 14, 19 (1)(g) and 300A thereof. The Act was therefore struck 2 down. This Decision was reversed by the Supreme Court much later.
Mr. Nariman’s total involvement was a Unique Experience. His insistence on placing every relevant factual detail and caselaw was a lesson for the team assisting Mr. Nariman. His oral Arguments for days together were a treat for any upcoming lawyer. The Clarity and Precision was amazing. So thorough was his preparation that he anticipated Queries from the Court and Opponent’s response. I was lucky to be introduced to Mr. Nariman so early in my career. Later, I got another opportunity to work with him. That is also unforgettable.
One day a Trader walked with a Assistant from the Advocate’s Office. Dressed in Dhoti-Kurta, he spoke in Marathi. I was astonished to know that Mr. Nariman fully understood his grievance and agreed to appear for him. This man narrated the facts about how he and his Brother were Partners in a firm in Panvel, Dist. Raigad. It was issued a license under the then Gold Control Act. That license was to come to an end. Differences and disputes arose between the partners. His brother was so influential that he engaged a eminent trial court lawyer, filed a Suit, without impleading him.
The suit for injunction simplicitor impleaded only the Government of India and the Authorities under the Gold Control Act. The aim was to restrain the Competent Authority from renewing the license or considering any application in respect thereof. On a request to grant urgent ad-interim reliefs a ex parte ad-interim injunction was granted by the Trial Judge in the terms prayed. That unusual order brought the business to a standstill. Mr. Nariman advised that this order be Questioned in 3 a Writ Petition under Article 227 of the Constitution of India.
While drafting the Writ Petition, I was hesitant firstly, because that being an order passed without even making him a party to the lis, he could apply to Trial court and request it to set it aside. He could have approached the Appellate Court against this order and brought to its notice the grave legal errors committed by the Trial Court.
Mr. Nariman would have nothing of this except a Writ Petition straight in the Bombay High Court. When it was called out, naturally, the learned Judge posed the query anticipated by me. Mr. Nariman urged that if Court’s Subordinate to the High Court have to be kept within the bounds of their jurisdiction and limits, the High Court must interfere and set right the wrong and grave injustice to his client. No Court can pre-empt exercise of Statutory Power and discretion. He attacked the Suit and urged that it be thrown out as it is barred by Law.
The Writ Petition was entertained and the impugned order was stayed. In every matter, his class, tenacity and intellect was evident. Mr. Nariman was so versatile and would be engaged in varied matters. His arguments were novel and Original. The ease and comfort with which Mr. Nariman appeared in complicated cases was incomparable.
The ability to go deep and the analysis of law on first principles earned respect from the Bench and Bar. His capability and calibre was admired globally. Once a Shankaracharya, was accused of a murder at his Mutt. He was behind bars as bail was refused. Mr. 4 Nariman’s out of the Box thinking and court craft enabled him to obtain Bail and get over the objection that his Client would influence witnesses on his release.
The apprehension that none would come forward to depose at the trial was taken care of by the promptitude with which Mr. Nariman assured the Bench that the Shankaracharya undertakes not to enter the Mutt till Court’s further Orders. None other than him could have thought of such response. It was almost instant. After my elevation as a Judge of the Bombay High Court, Mr. Nariman appeared before a Division Bench of which I was a part but the point of law raised by him was squarely covered against his Client by previously rendered judgments of the Supreme Court and Bombay High Court.
Yet, Mr. Nariman urged that we must note all submissions. He urged that merely because a Notice under the Indian Forest Act was issued, a private land is not a Forest. Independent of the Notice under the Central Law, the Authority must satisfy itself whether that land is a forest and record its satisfaction with reasons. The view taken was, on issuance of notice, such lands were deemed to be forests and even if privately owned they vest in the State.
Mr. Nariman argued that the word “issued” in the state law be construed as “issued and served”. Every notice issued by the Authority does not necessarily reach the recipient. If it is not received by the party to whom it is addressed, it is no notice at all. Mr. Nariman relied on the Affidavit of a 97 year old Retired employee who deposed on oath that while serving the Company, no Notice under Section 5 35(3) of the Central Law was served on it. Mr. Nariman persuaded us to call for the Original Records from the Archives and argued that there is no proof of that notice being issued as the Original Register does not contain the particulars thereof. Assuming that it is issued, he submitted that there is no proof of its Service on his client.
The State urged that it is a old notice and no argument about its non-issuance can be entertained. Though tempted, in the teeth of binding judgments we, could not accept Mr. Nariman’s fervent pleas. After our order was challenged, Mr. Nariman convinced the Supreme Court to reverse its earlier views. Pertinently, the bench comprised of Hon’ble Mr. Justice R.M. Lodha who later on became the Chief Justice of India. Mr. Justice Lodha’s view to the contrary in the Bombay High Court was a binding judgment. However, sitting as a Hon’ble Supreme Court Judge, Justice Lodha joined two others in agreeing to recall and set aside the earlier view.
Mr. Nariman was at his best in challenging Cases. He enjoyed appearing in a hostile court. A true professional, he was conscious of the limits of Judicial power and Limitation of Judges. He was worried about Quality and worked tirelessly to raise the Bar. He wrote and spoke critically on sensitive issues relating to functioning of the Judiciary but would not tolerate any interference with its Autonomy and Independence. I remember his speech, in the presence of my father, who was the then acting Chief Justice of Bombay High Court, on the occasion of the 125th Centenary of the Bombay High Court. Mr. Nariman said 6 that the judiciary is suffering from three Cs, Caste, Corruption and Cost. Everybody in the Audience said this was a very telling, bold but true statement.
Mr. Nariman was a champion of freedom of speech and expression and never hesitated in voicing his views in and outside Court. In the Indian Express case (1986) 1 SCC 133, he argued successfully that every attack on the Press violates citizens Right to free speech and expression.
He was outspoken and forthright, firm and frank in his writings. His emotional side was revealed when I lost my father in the year 2019. He penned a note admiring my father’s memory and wide knowledge of case laws while comforting our family. Although he agreed to meet. I regret not meeting him post my retirement. His passing away when the trust in Constitutional Institutions is eroding, is a huge loss.
Men like Mr. Nariman continue to inspire and guide generations by their grit and determination, knowledge and hard work reflected in Precedents and Records of Superior Courts. We are lucky that he was amongst us till completion of 75 years of our Independence.
