We Must Never Forget The Lessons Of The Internal Emergency Of June 1975

By :  Legal Era
Update: 2018-05-24 05:32 GMT
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Legal Era in conversation withIndia’s most distinguishedconstitutional lawyer, the legendaryFali SamNariman...Legal Era (LE): You have been Senior Advocate of the SupremeCourt of India since 1971. What has the experiencebeen like?Fali Sam Nariman: Fantastic! A more detailed answer to that question would filla book. In fact, it has already filled a book! My Autobiography(“Before...

Legal Era in conversation with

India’s most distinguished

constitutional lawyer, the legendary

Fali Sam

Nariman...

Legal Era (LE): You have been Senior Advocate of the Supreme

Court of India since 1971. What has the experience

been like?


Fali Sam Nariman: Fantastic! A more detailed answer to that question would fill

a book. In fact, it has already filled a book! My Autobiography

(“Before Memory Fades”), the first edition of which was

published in 2010, is currently in its seventeenth edition.

Briefly - very briefly - my experience is set out below:

I joined the Bombay Bar in November 1950.

A year later, I joined the Chambers of the greatest Advocate (of

the time) in Western India, Sir Jamshedji Kanga (JBK).

Despite all physical inconveniences of a small Chamber,

accommodating such a large number of advocates – many of

them already in top practice – the days I spent in JBK’s Chambers

at the ground floor of the High Court building were the happiest

years of my early professional life. We had the most amazing

leader in Sir Jamshedji Kanga – all 6 feet 4 inches of him – but

much taller in heart and in mind. At 6:45 in the evening on almost

every working day, when the conferences of the busy seniors

were over, we would all gather around Sir Jamshedji’s table and

he would regale us with stories of old. We loved him because

he was so exuberant – always childlike, never childish! Kanga’s

Chamber was a busy one. It was also a very happy Chamber

where there was much fun and laughter.

During my early days at the Bombay Bar, I came to know and

learn a great deal from the professional giants by just listening

to them and watching them perform. And in my time, we were

fortunate to have judges who were considerate and kind to

juniors. Amongst them were Justice N. H. Coyaji, Justice Sunderlal

T. Desai, and Justice Kantilal T. Desai, not to forget Chief Justice

M. C. Chagla, who (as Judge) was in a class by himself!

In 1972, the then Law Minister of the Union of India offered me

the post of Additional Solicitor General of India, a post which

had been abolished way back in 1967 and which had just been

revived.

I was young and ambitious, and I readily accepted (‘too readily’

had been my wife’s laconic comment!). But then, I had already

declined one good offer and did not want to refuse another: It

was in late 1966 that Justice Kotwal, Chief Justice of Bombay,

pressed me to accept a judgeship at the Bombay High Court. In

those days, an offer of judgeship to anyone under 40 was taboo

without express clearance from the Chief Justice of India. I was

nearly 38 and Justice Kotwal told me that he had sought and

obtained the necessary permission. He read out to me Justice

J. C. Shah’s letter to him communicating Chief Justice Subba

Rao’s approval to my being asked. But it was with great regret

that I was compelled to decline the offer – for financial reasons.

In those days, the monthly stipend of a high court judge had

remained stationary since I joined the Bar in 1950 viz. '3,500.

This amount was insufficient to support, in the same style of

living, my immediate family of three (my wife and two children)

and my dearest grandmother who was dependent on me. So,

despite Chief Justice Kotwal’s kind persuasion, I simply could not

afford the luxury and ‘prestige’ of being a high court judge!

For me, accepting appointment as a law officer of the Union of

India was different from declining the offer of a place on the

bench of the Bombay High Court six years before. Although it

meant shifting to Delhi and private practice was forbidden, a

law officer’s remuneration by way of stipulated fees ('1,040 for

appearance in each special leave petition and '1,680 per day for

final hearings of appeals and writ petitions) did, at the time, add

up to a comfortable figure. Besides, appearing for public-sector

corporations and state governments for ‘normal fees’ was not

prohibited. ‘Normal fees’ were hardly ever more than double

the fees stipulated for appearances in matters of the Union of

India. C. K. Daphtary, distinguished former Attorney General

who had reverted to private practice by the time I went to Delhi,

ticked me off for accepting the post of ASG. He told me, ‘Fali, you

have made a grave mistake … with this government, you will find

it a thankless job.’

The reaction of a trusted member of our household staff to

my appointment as ASG in Delhi was no different than C. K.

Daphtary’s. Babu Kalidas had worked with us for many years –

in fact, he always ‘worked’ as if he had long since retired from

active service. Babu did not react with great enthusiasm when

my wife told him that I had been appointed Additional Solicitor

General of India. He screwed up his face and said, ‘Chalo (!) vela,

vela magistrate thaye jai to saroo’ (Well, it will be good if he

soon becomes a magistrate!).

I am frequently asked by law students around the country

as to how a lawyer must prepare for and argue important cases.

The only appropriate answer I can offer is, ‘As best as you can.’

Robert H. Jackson (who was Solicitor General of the United

States in the late 1930s), after he became an Associate Justice of

the US Supreme Court (1941 to 1954), wrote that as a practising

lawyer, he found that he made three arguments in every case:

the one he planned (‘logical, coherent, complete’); the one he

presented (‘incoherent, disjointed, disappointing’); and the

one he did not make (‘the utterly devastating argument that I

thought of after going to bed that night!’) – After 67 years in

active practice as an advocate, I sometimes still experience the

same feeling!

LE: You have been instrumental in the development

of Indian Constitutional Law. Has the Constitution

of India withstood the test of time?


Fali Sam Nariman: I believe it has, despite many hiccups! For instance, one of the

lessons of the Internal Emergency (of June 1975), which I hope

we have learnt, is not to rely on constitutional functionaries.

These functionaries failed us – ministers of government,

members of Parliament, judges of the Supreme Court, even the

President of India who signed the Proclamation of Emergency

virtually at the behest of three senior lawyer-politicians of

the Congress Party (then in power at the Centre). With the

Basic–Structure–doctrine first pronounced by a majority of the

Court (7:6) in the Keshvananda Bharati case (1973) and later

cemented in the case of Raj Narain v. Mrs. Indira Gandhi (1975),

the chances of constitutional functionaries failing us have now

(hopefully) receded. But we must keep our fingers crossed. All of

us – lawyers and judges – must never forget the lessons of the

Internal Emergency of June 1975.

LE: You were a President-appointee Member of the

Rajya Sabha between 1999 and 2005. What was

the experience like? You’ve often said that it is not

good for the country for any political party to have

a majority in Parliament. Why?

The chances of

constitutional

functionaries failing us

have now (hopefully)

receded. But we must

keep our fingers crossed.

All of us – lawyers and

judges – must never

forget the lessons of the

Internal Emergency of

June 1975


Fali Sam Nariman: The happiest years of my professional life were in the Chambers

of Sir Jamshedji Kanga. And, next to those years were my six

years (1999–2005) in Parliament. I enjoyed the confidence of all

members at all sides of the House; they always patiently listened

to me, though they did not always accept what I said!

My days as a parliamentarian, I can quite frankly say, have been

a rich experience and I have learned a lot. People often used to

ask me how I fared as a member: ‘How could an intellectual like

you fit in with a host of others?’ they would contemptuously

enquire. My response would be that “The Rajya Sabha was and is

a microcosm of the nation, where representatives from various

sections of society mingled together, spoke passionately about

problems that concerned them, and were generally tolerant

of one another, although this spirit of tolerance may not have

reflected outside Parliament – in the rest of the country!”

My one observation about Indian politics and Indian politicians

is that it is only when our Parliament and our politics are no longer dominated by one single political party that India will

once again become a country where all points of view are freely

expressed and sympathetically heard.

LE: As a Member of the Rajya Sabha, you suggested

that before investigating allegations of corruption

against senior officers, the CBI should get approval

from the Central Vigilance Commission and not the

Government. However, your proposal was rejected.

Don’t you think all political parties are united in

shielding corrupt officers?


Fali Sam Nariman: I am compelled to believe that all political parties are united in

shielding some favorite coterie of reputedly ‘corrupt’ officers!

I recall that during the debate on the Central Vigilance

Commission Bill, 2003 in the Rajya Sabha, my friend Dr P. C.

Alexander, M.P., spoke with some anguish. He said:

“When I entered the Civil Service way back in 1948, at the

beginning of our Independence, my worry was whether

my tehsildaar would be corrupt, my sub-inspector would

be corrupt, my bench clerk in my court would be corrupt.

I could never imagine that my senior officers would be corrupt. I could never imagine when I became a senior officer

that I would ever become corrupt.

Under this Bill, we have given senior officers protection.

Government sanction is needed before even an inquiry can

be started against them.”

Dr Alexander characterized this clause (in the Bill) as the ‘Enemy

Number One’. And former Central Vigilance Commissioner, N. Vittal,

had already gone on record to say that the provision was ‘vicious’.

What is most disturbing to me, however, is the polity in which we

live and lived. What I regret is not that the government of the day

pushed through the Central Vigilance Commission Bill, 2003 (most of

whose other provisions were unexceptionable) or that the minister

did not accept my proposed amendment to the ‘single-directive-clause1

What hurts me the most is that the opposition then in the

Rajya Sabha (later, in government) – in August 2003 – was in an

effective position to ensure that the obnoxious ‘single directive’ was

not passed, but the opposition also approved the Bill in its entirety!

With adult franchise, we not only get the government we deserve,

but also appear to get our just political desserts!

LE: You have mentioned that the two most influential

judges of the Supreme Court so far have been Justice

Subba Rao for his political agenda and Justice Krishna

Iyer for his social agenda. Please substantiate.


Fali Sam Nariman: It has been said that Subba Rao (and the Subba Rao Court) was

‘rightist’, and Justice Krishna Iyer (and those of his school of thought)

was ‘leftist’. This is a superficial characterization indulged in by those

who are obsessed with ‘isms’. Besides, it is not even correct. Each had

many similar and abiding major concerns.


The abiding concerns of the Subba Rao Court were underlined

(coincidentally, but characteristically) by the first and the last case

in which this great judge presided as Chief Justice. In the first case,

he firmly upheld the independence of the judiciary by ensuring that

the subordinate judiciary should not be selected except from the

judicial service. In Chandra Mohan’s Case (1966), it was contended

for the State that it was permissible for the Governor (which meant

the State Government) to frame rules permitting the recruitment

of judges in the subordinate judiciary not only from advocates

and pleaders of requisite standing but also from members of the

executive departments discharging revenue or ministerial functions.

Chief Justice Subba Rao (in this first case in which he presided

as chief justice) said that it was unreasonable to attribute to the

makers of the Constitution who had so completely provided for the

independence of the judiciary an intention to destroy it by an indirect

method! ‘What can be more deleterious for the good name of the

judiciary than to permit at the level of District Judges recruitment

from the executive department?’ he asked and then declared the

Uttar Pradesh Higher Judicial Service Rules framed by the State

Government as unconstitutional.

In the last case over which he presided (Satwant Singh vs.

Assistant Passport Officer – also known as the ‘Passport case’),

Chief Justice Subba Rao speaking for a majority in a bench of

five judges held that the expression ‘personal liberty’ in Article

21 encompassed a right of locomotion, of the right to travel

abroad. Every person living in India has a fundamental right to

travel, even outside India, and the refusal of the government to

give him a passport without a valid law - prescribing reasonable

restrictions - was held to be an arbitrary exercise of executive

power, infringing the Equality Clause of the Constitution. In this

last case, Subba Rao had, with the help of Justices J. M. Shelat

and C. A. Vaidialingam (who concurred with him), converted his

minority opinion in Kharak Singh (1964) as the declared law of

the land!

LE: You had said at one point

that Soli Sorabjee became the

Attorney General of the Vajpayee

government after you declined

the post. Sorabjee said that

you got the Union Carbide brief

after he declined to take it. Was

this just a rivalry between two

eminent Parsi jurists?


Fali Sam Nariman: Our careers in the profession – Soli

Sorabjee’s and mine – have run along

almost parallel lines – though we have

not always seen eye to eye. I was two

years his senior in the Chamber, but

he was two years my senior in marriage!

(He got married before I did.)

Being older than him, I became a law

officer first, but then resigned during

the 1975 Emergency. But Soli has to his credit not just a stint

as Solicitor-General of India but as Attorney-General of India as

well – not once but twice.

Over the years, we have been rivals in the rough and tumble

of the legal profession, and now for many, many years, in the

evening of our lives, we have remained friends!

LE: You received a lot of flak for appearing for

Union Carbide in the Bhopal gas leak case. Given

your credentials as a defender of human rights, do

you, in retrospect, wish that you hadn’t accepted

the brief?


Fali Sam Nariman: For a truthful and effective answer to the question, you must

read Chapter 10 (“The Bhopal Case”) in my Autobiography

(“Before Memory Fades”).

As to whether, in retrospect, I wish I hadn’t accepted the brief

of Union Carbide Corporation in the Civil Litigation arising out

of the Bhopal gas tragedy, my answer is rhetorical - a stanza

from the Rubaiyat of Omar Khayyam – a world famous poem –

translated by Edward Fitzgerald:

Moves on: nor all thy Piety nor Wit,

Shall lure it back to cancel half a Line

Nor all thy Tears wash out a Word of it.”

LE: In an earlier interview, you had said that the

Supreme Court must oversee the resolution of the

Babri Masjid dispute. Why?


Fali Sam Nariman: My regret has been that in the first round of the Babri Masjid

case in 1994, a five-judge bench of the Supreme Court (on this

point) unanimously refused to answer pertinent questions in the

Presidential Reference saying that it had to be decided in the civil

cases filed (and then pending) in the High Court of Allahabad. In

2018, we have now come full circle – the Allahabad High Court

has decided the dispute in the civil

cases and the ball is back again in the

Supreme Court – in appeal from the

decision of a three-judge bench of the

Allahabad High Court. This was and

still is a nation-shaking case for India,

and hence, the earlier the Supreme

Court had put its mind to the factual

dispute, the better it was (and is) for

all citizens.

LE: In December 2009,

the Committee on Judicial

Accountability stated

that it considered that

recommendations for judicial

appointments should only

be made after public debate,

including review by Members

of the Bar of the affected high

courts. This statement was made in relation to the

controversy over the appointment of Justices C. K.

Prasad and P. D. Dinakaran. You were among the

legal luminaries who signed the statement. Please

comment.


Fali Sam Nariman: Since December 2009, there has been far too much disputation

at the Bar, and my comment to this question is that what I stated

then is not precisely what I think now!

LE: It was you who argued in the famous case of

the Supreme Court AoR Association in which

the Supreme Court took over the appointment

of judges in the higher judiciary. However, in an

earlier interview, you said that you regret you won

that case. Why?


Fali Sam Nariman: Here again, I must press upon you to read Chapter 16 of my book

‘A Case I Won – But Which I Would Prefer to Have Lost’.

The principal point I made in that Chapter was that:

Once systems are in place and the method and procedure of

appointment is known, the confabulations within the Judiciary must be left to the justices without the intruding eyes of

members of the public or the media. The problem today – as also

the problem that was there yesterday and in the days before – is

that in public perception, not enough time and attention appear

to be given by successive ‘collegiums’ to the important task

of recommending judges for appointment to the high courts

and to the Supreme Court, simply because the judges at the

top (the first three or the first five depending on whether the

recommendations to the government for appointment are to

a high court or to the Supreme Court) are far too busy in the

important constitutional task entrusted to them – to decide the

largest possible volume of cases that keep coming up to the

Highest Court for final adjudication: a supremely important task!

LE: You represented the Gujarat government in the

matter of the Narmada rehabilitation but resigned

shortly after the attacks on Christians in the area

and burning of copies of the Bible. Please comment.


Fali Sam Nariman: Prior to December 1998, I was instructed and was appearing for

quite some time as a Senior Counsel in the Supreme Court for

the State of Gujarat in a public interest litigation (PIL) filed on

behalf of tribals who were displaced (and to be displaced) by

the rising height of the Narmada Dam in Gujarat. The principal

question in this PIL was whether the indigenous people of this

country had an inherent right to live wheresoever they chose

and in the manner in which they had been living for centuries,

or whether and to what extent could they be compelled to shift

to higher locations in wider public interest. Linked to all this

was the question of whether there were adequate measures of

rehabilitation.

While the PIL was pending in the Supreme Court of India, the

then Chief Minister of Gujarat, Keshubhai Patel, called on me

at my residence in New Delhi. It was a courtesy call, but since

a few days before I had read from press reports that Christians

in certain parts of Gujarat were being harassed and their Bibles

were being burnt, I told him that this action (though having

nothing to do with the Narmada case) was something which was

a total anathema to me, and I would like to see this stopped. He

assured me that it would be, and in fact, he said that really there

was nothing in it.

A couple of months later, since there was some policy decision

to be taken-up about improved measures of rehabilitation

in the Narmada case, the same Chief Minister again called on

me. Meanwhile, the situation of minorities in the government

appeared to have worsened, according to press reports. The

media had reported that not only Bibles, but now even churches

were being destroyed and desecrated in various parts of Gujarat.

I was extremely annoyed and told the Chief Minister that unless

conditions in Gujarat improved, I would have to do what I

thought was correct in the circumstances.

Again came more reassurances – both orally and in writing – but

all to no effect, and then, ultimately in December 1998, since

nothing was done at all by the then Gujarat government to

alleviate the plight of the minorities, particularly the Christians, I

returned my brief and said that I would not appear for the State

of Gujarat in this or in any other matter. This caused a great

furore!

Besides the purely egoistic, there is a point in my recalling all

this. The point is that but for the revelations by the media – that

is its responsibility as a free press to disseminate information

which is of concern to the general public – I would have been

ignorant and would not have known, living in the capital city of

Delhi, about what was happening in remote parts of Gujarat.

It was the press which brought these attacks on minorities to

light. And I think that it disclosed a very important aspect of

press responsibility or (if you don’t like the word ‘responsibility’)

of press ethos, i.e., to always lean on the weaker side and to

effectively perform the role of an opposition to the government

– whether at the Centre or in the State. To me, this is one of the

finest attributes and an essential role of a free press. And this is

why when dictatorial governments take over in other countries

and parliamentary systems of governments are given a go-by, it

is the press that is always the first victim! (Next are the practicing

lawyers!)

LE: At one point, Justice Markandeya Katju made

damaging allegations against the judiciary and the

rampant disorder running through the collegium

system. Please comment.


Fali Sam Nariman: I suggest you enquire from the Judge who made these

allegations.

LE: Leaving aside Justice Katju’s allegations, there

has always been criticism that more often than

not, vendetta and bias govern the working of the

collegium. Is this true?


Fali Sam Nariman: I do not believe it is true, although even responsible people

(sometimes) do float rumors to this effect! If vendetta and bias

permeate the ‘collegium’ system (which I doubt and deny), it

must necessarily affect decisions on the judicial side, and I do

not at all believe that judicial decisions in the country’s Highest

Court are influenced by either vendetta or bias. If God forbid

they ever are, we will have to recruit our judges from outside

India: a horrible thought!

LE: The collegium has also been criticised for

leaving no room for the executive to play a role in

the appointment of judges to the higher judiciary.

What are your views about this?


Fali Sam Nariman: The justification for the ‘collegium – system’ is the Nine-Judge-

Bench decision in the Second Judges Case (Supreme Court

Advocates-on-Record Association & Others vs Union of India –

1993(4) SCC 441). Under this decision, the Executive does have

a role, but only a limited role, not the role initially propounded

in the First Judges case, by a seven-judge bench of the Supreme

Court of India (by majority of 4:3) in the year 1981: the decision

of the majority in the 1981 decision has been overruled by the

Nine–Judge Bench decision in the Second Judges case (Supreme

Court Advocates-on-Record Association & Others vs Union of

India – 1993(4) SCC 441).

LE: The Vice-President of India was criticized for

his hasty dismissal of the motion to impeach the Chief Justice of India. What do you think about this move to

impeach the CJI?


Fali Sam Nariman: In my view, it was not a hasty decision, and in any case, subsequent events (viz.

the withdrawal of proceedings initiated to challenge the view of the Chairman

of the Rajya Sabha) provide an effective answer to the question posed.

LE: Do you think that the grounds for such a motion were

created back in January when four of the seniormost judges

of the SC aired their grievances in an unprecedented press

conference?


Fali Sam Nariman: Possibly. The public were led to believe that in the opinion of four seniormost

Judges there was something wrong in the functioning of the Supreme Court –

a premier institution of great prestige.

LE: In September 2016, the then Chief Minister of Karnataka

claimed that you had not consulted the government before

informing the Supreme Court about Karnataka’s offer

to release 10,000 cusecs of water to Tamil Nadu as a

goodwill gesture. There was a lot of controversy around

the matter, so much so that some people even pointed

at a conflict of interest with your representing the

then Tamil Nadu Chief Minister Jayalalithaa in the

disproportionate assets case. Please comment.


Fali Sam Nariman: There was and there is no conflict of interest because appearing

as Counsel for obtaining bail in the disproportionate assets case

was way back in the year 2014, whereas the Chief Minister of

Karnataka’s reported statement was of a subsequent year

(September 2016).

In my experience, when a Counsel is briefed in a proceeding

in Court without any specific restrictions from the client,

the Counsel is free to make binding commitments on

behalf of the client, and if the client chooses not to honor

the commitment so made, the client is free to discharge

the Counsel engaged and to brief another. This has been

my settled view, and I have so acted, whether appearing for

governments or private parties, in my active practice as an

Advocate for over 65 years.

Bail was granted by the Supreme Court of India to Selvi J.

Jayalalithaa only on the condition (which was the offer made by

me as her Counsel in Court) that Jayalalithaa would ensure that the

Appeal filed by her would be heard by the High Court of Karnataka

from January to April 2015, and to facilitate that very early hearing,

we would ensure that all the voluminous records in the Case (343

printed volumes) were got printed by her at her cost before December

2015. “If not,” as the Chief Justice of India had warned in open court,

“Ms. Jayalalithaa will go back to jail”! The case regarding bail was

heard by a bench consisting of Chief Justice H. L. Dattu, Justice Madan

B. Lokur, and Justice A. K. Sikri and the order is recorded in 2015 (3)

SCC 111 (18.10.2014). It reads as follows:

“ORDER

1. After hearing Shri Fali S. Nariman, Shri K.T.S. Tulsi, learned

Senior Counsel for the petitioners and Shri Subramanium Swamy,

party-in-person and also the complainant, for the present, we

suspend the sentence and direct that the petitioners, (i) Selvi J. Jayalalithaa, (ii) Tmt. N. Sasikala,

(iii) Mr. V.N. Sudhakaran, and (iv)

Tmt. J. Elasvarasi be released on

bail on executing a bond with

two solvent sureties by each of

them to the satisfaction of the

Thirty-sixth Additional City Civil

and Sessions Judge (Special Court

for trial of criminal cases against

Km Jayalalithaa and others) at

Bangalore.

2. Call these matters on 18.12.2014.

The sting was in the tail – the last

sentence. The subsequent order (dated

18.12.2014) of the same court records

that the undertaking given by Ms.

Jayalalithaa to have the records printed

(343 volumes) and copies supplied to all

parties before December 2014 had been

honoured, and accordingly, bail granted

was confirmed, and the Appeal of Smt.

Jayalalithaa was to be, and was in fact

and was directed to be, heard in January

2015 by the Karnataka High Court: The

High Court of Karnataka by its judgment

dated 11.5.2015 reversed the verdict of

the special court and acquitted all the

accused including Smt. Jayalalithaa of all

charges. But on further appeal in the Supreme Court of India,

where the matter was heard from February 2016 to June 2016,

orders were at first reserved. Meanwhile, Smt. Jayalalithaa died

on 5.12.2016 and judgment in the case was pronounced by a

two-judge bench of the Supreme Court in February 2017, setting

aside the high court judgment of acquittal (reported in 2017 (6)

SCC 263).

LE: You’ve been quoted as saying that Roosevelt’s

two freedoms, i.e., freedom from want and

freedom from fear, are a cause for concern in this

country. Why?


Fali Sam Nariman: The quote from ‘WALK THE TALK’ reads as follows:

“Fali Nariman, ‘the liberal lion of the Bar’ as he is called by most

of his well-wishers, says he is worried about freedom in India

today. People are not free from fear, it’s gnawing on them, so

feels Mr. Nariman. He talks about the sedition law and how the

problem of sedition comes from fear. He is a Nehruvian and he

believes that Nehru’s ‘Discovery of India’ made us proud. He

also feels that criminal defamation should be abolished and

civil defamation law made stronger. Mr. Nariman dislikes hate

speech as it pulls down the atmosphere of progress. ‘Must

preserve what our Constitution has given us’ is how Mr. Nariman

concludes this very candid interview.”

LE: You’ve also said that Indians need to be more

tolerant? Please elaborate.


Fali Sam Nariman: If I recollect, I had said that all citizens need to be far more tolerant than they are because intolerance breeds disharmony

and often leads to violence.

LE: You are an internationally recognized jurist on

international arbitration. What are your views on

arbitration in India?


Fali Sam Nariman: Arbitration is a good thing as compared to litigation, but

mediation, when successful, is even better. With the recent

amendments in the Arbitration Law, whenever an arbitration

proceeding is handled with skill and efficiency, it makes for

a far better (and quicker) method of dispute resolution than

litigation, since litigation in India takes place at least at three

levels – first in the Trial Court, then in the High Court, and finally

in the Supreme Court of India!

LE: What led you to pen your Autobiography

“Before Memory Fades”?


Fali Sam Nariman: For two reasons:

(i) Because in the year 2010 when my Autobiography was first

published, I had already reached 80 - the age of forgetfulness!

and

(ii) because of the fear expressed by the great English poet,

Mathew Arnold:

“And we forget because we must, And not because we will”!!

In my Autobiography, I have recalled episodes from my life and

(along the way) commented on men and matters.

1. The single directive was an order issued by the Government of India in 1969 (and

thereafter frequently amended); it required prior sanction of the designated authority

in Government to initiate investigation against officers above a certain rank – not only in

the government, but also in public sector undertakings and in nationalized banks. The

single directive was struck down in Vineet Narain’s case (1998) on the ground that it

was not permissible under the Central Government’s general power of superintendence

under Section 4(1) of the Delhi Special Police Establishment Act 1946, but it was revived

under the Central Vigilance Commission Bill 2003 – which on being passed became an

Act of Parliament.

 

By - Legal Era

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