Justice BR Gavai: "Fali Nariman Built Constitutional Precedents, Rather Than Relying On Them"

Supreme Court Judge Justice BR Gavai on Friday (Dec 6) 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. “His generation had the responsibility of building building precedents rather than relying on them”: Justice Gavai said.

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Justice BR Gavai: "Fali Nariman Built Constitutional Precedents, Rather Than Relying On Them"

NEW DELHI: Supreme Court Judge Justice BR Gavai paid a heartfelt tribute to the late jurist Fali S. Nariman, lauding his unparalleled contributions to India’s legal landscape.

Speaking at the Fali Nariman Memorial Lecture organized by the Bombay Bar Association, Justice Gavai reflected on Nariman’s pivotal role in shaping constitutional jurisprudence, particularly during an era when the foundations of India’s legal framework were still being established.

Building, Not Relying on Precedents

Justice Gavai emphasized the unique challenges faced by Nariman and his contemporaries, highlighting their responsibility to create legal precedents rather than rely on existing ones.

“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,”

-Justice Gavai remarked.

A Pioneer in Constitutional Interpretation

Nariman’s contribution was not merely academic; he was instrumental in transforming the Constitution into a dynamic framework for governance. Justice Gavai noted how Nariman’s fearless approach to expressing candid opinions often sparked necessary debates for the growth of law.

For instance, Nariman was openly critical of the Supreme Court’s decision to uphold the abrogation of Article 370.

“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.

Defender of the Basic Structure Doctrine

Justice Gavai highlighted Nariman’s staunch defense of the basic structure doctrine, which protects the core principles of the Constitution.

“Throughout his illustrious career, he defended the basic structure, arguing several cases that relied on this principle. Beyond his courtroom contributions, Mr. Nariman emerged as a public intellectual and staunch defender of the doctrine.”

Landmark Contributions to Key Cases

Nariman’s influence extended across pivotal cases that shaped India’s fundamental rights. Justice Gavai acknowledged his significant role in landmark judgments, including Golaknath vs. State of Punjab, Air India vs. Nargis Mirza, and TMA Pai Foundation vs. State of Karnataka.

These cases redefined constitutional principles, particularly those concerning minority rights and the balance of power between government regulation and individual freedoms.

“The judgment displayed the jurist’s crucial role in shaping India’s constitutional jurisprudence on minority rights,”

-Justice Gavai stated.

Courageous Stands for Justice

Justice Gavai praised Nariman’s ethical integrity, particularly his decision to resign as Additional Solicitor General during the Emergency period, a move that exemplified his commitment to fundamental rights.

“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.”

Nariman also stood firm against the State of Karnataka during the Kaveri river dispute, refusing to appear until the state complied with Supreme Court orders.

“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.

Reflections on the Bhopal Gas Tragedy Case

Justice Gavai addressed Nariman’s controversial decision to represent Union Carbide in the aftermath of the Bhopal Gas Tragedy, a role that drew widespread criticism.

“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, Nariman later expressed regret over his involvement.

“In 2010, he expressed regret over his involvement, stating that in hindsight, he certainly would not have accepted the civil liability case.”

A Multifaceted Public Intellectual

Beyond the courtroom, Nariman was a prominent public intellectual, contributing to legal and social discourse.

Justice Gavai highlighted his tenure as a Rajya Sabha member (1999–2005), his writings, interviews, and mentorship of young lawyers.

“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.”

Dedication Until the Very End

Nariman’s commitment to the Constitution remained unwavering until his last days. Justice Gavai revealed that Nariman was working on a chapter titled “Values of the Preamble” for a Supreme Court publication commemorating its 75th anniversary, submitting it just hours before his passing.

“Nariman’s dedication to the values of the Constitution was such that even in his last days 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.”

-Justice Gavai concluded.