Fali Nariman built Constitutional precedents rather than relying on them: Justice BR Gavai

Supreme Court Judge Justice BR Gavai on Friday hailed eminent jurist Fali Nariman's contribution to law, highlighting the tough task the generation of those jurists faced in practicing law and building precedents after Constitution was enacted. .Hi generation had the responsibility of building building precedents rather than relying on them, Justice Gavai said.“Firstly, they were tasked with building precedents rather than relying on them. When the Constitution came into effect, the jurisprudence of surrounding it was nascent. Secondly, this generation had the responsibility of interpreting and applying the law directly from the text of the Constitution,” the Supreme Court judge said..He was speaking at the Fali Nariman Memorial lecture organised by the Bombay Bar Association in the memory of Nariman who passed away in February this year..Justice Gavai underscored Nariman’s role in laying down precedents and interpreting constitutional principles and noted that his contributions were instrumental in transforming the Constitution from a written document into a living, organic, dynamic framework of governance.Justice Gavai also highlighted how the senior jurist was not hesitant or unafraid to express his candid opinions and he openly voiced critical views.In this regard, the judge highlighted how Nariman was critical of the Supreme Court judgment upholding the abrogation of Article 370 of the Constitution.In December 2023, a Constitution bench of the apex court unanimously upheld the Union government’s decision to abrogate Article 370, which granted special status to Jammu and Kashmir. Justice Gavai was a part of the bench. Nariman in one of his last public speeches had expressed regret that there was no dissenting opinion in the judgment. “I was a part of the Article 370 judgment, which was consistently criticized by him. Whether or not one agrees with him, but such conversations are necessary for the development of law,” Justice Gavai said.He also said that Nariman was a staunch defender of the basic structure doctrine.“Throughout his illustrious career, he defended the basic structure, arguing several cases that relied on this principle. Beyond his courtroom courtroom contributions, Mr. Nariman emerged as a public intellectual and staunch defender of the doctrine.”The Supreme Court judge spoke at length about Nariman’s role in key cases that shaped fundamental rights such as Golaknath Vs State of Punjab, Air India Vs Nargis. Justice Gavai also highlighted Nariman’s arguments in TMA Pai Foundation v. State of Karnataka which dealt with the rights of minority educational institutions and the issue of the government's control and regulation. The judgment displayed the jurist’s crucial role in shaping India's Constitutional jurisprudence on minority rights, Justice Gavai said..Justice Gavai also hailed Nariman’s decision to resign from the position of Addition Solicitor General (ASG) during emergency.“By resigning from his position in protest against the emergency, which he believed was unjust and stripped citizens of their fundamental rights, Mr. Nariman embraced the values of the Constitution and embodied its true spirit.”He also highlighted how Nariman put his foot down and told the State of Karnataka that he would not appear in the Kaveri river dispute till the State complied with the Supreme Court’s judgment."Mr. Nariman had told the bench that he had unequivocally stated he would not argue for Karnataka till the orders of the Supreme Court were complied with, the bench acknowledged,” Justice Gavai reminisced..On Nariman’s decision to represent Union Carbide in the Bhopal Gas Tragedy case, Justice Gavai said, “Mr. Nariman's decision to represent Union Carbide in the aftermath of the tragedy drew significant criticism from the media and legal community. In response to an article harshly criticizing his role, Mr. Nariman argued that suggesting human rights lawyers should avoid representing those accused of violating rights was a limited view of legal ethics.”However, the jurist later expressed regret over appearing the case.“However in 2010, he expressed regret over his involvement, stating that in hindsight, he certainly would not have accepted the civil liability case.”.Hailing Nariman’s active role in shaping public discourse by wearing multiple hats, Justice Gavai said “In the last two and half decades, Fali Nariman was shaping the public discourse through his role as a member of the Rajya Sabha, - appointed by the President during 1999 to 2005 - writing books and articles, giving interviews on key issues and mentoring the young members of the Bar and law students.”.The apex court judge also highlighted Nariman's dedication to the cause of Constitution till the very end.“Nariman's dedication to the values of the Constitution was such that even in his last date he was occupied in writing a chapter titled: values of the preamble for a book which the Supreme Court of India published to mark the 75th anniversary of its foundation. He submitted a chapter by e-mail a couple of hours before he took his last breath.”He concluded his speech by stating that Nariman’s life serves as an enduring source of inspiration.