Justice in question

power play

Fali S Nariman opens his book with a sentence from John Milton’s Areopagitica which calls for argumentation and articulation of opinions in the public space because ‘’opinions of good men is but knowledge in the making’’. The 17th-century English poet’s pamphlet addressed to the English parliament was one of history’s earliest documented arguments against censorship and a reasoned call for freedom of expression.

The theme pervades the entire book, and Nariman devotes a chapter to freedom of expression which he rightly thinks is basic to the Constitution. He studies the idea of freedom and its practice with the help of the Constitution and many judgments of the Supreme Court. He asserts that the media have an obligation to disseminate information and ideas freely and fearlessly, and the people have the right to receive them. It is a rounded view of a fundamental right which is now being challenged in practice and even in theory by some sections of people. So the assertion of its value and importance by one of the senior most and brightest legal luminaries of the country is very relevant.

Nariman’s main theme in the book is the Supreme Court and its functioning, and in the title essay, he asks the question whether the best of times has disappeared. He is not happy with the way the court has been ‘run’ in the last few months, and the controversies about it. He thinks the senior-most judges, including the chief justice of India(CJI), exhibited a singular lack of collegiality, and public confidence in the highest court is at an all-time low. That is why he thinks these are desperate times that call for a prayer to God to save the court.

The reference is to the press conference four senior-most judges of the court held in January this year to make public their unhappiness with the conduct of the chief justice. He does not agree with the public airing of grievances against the CJI by the judges and says: “‘The belief persists widely that Justice Chelameswar did not take kindly to his being sworn in as a judge after Justice Misra.” This denied Justice Chelameswar the opportunity to become the CJI. Whether the personal element had a role in the conflict or not, he is sure that it divided what was up to then a seemingly undivided court. He makes it clear that he took this position not because he supports the CJI but because he is concerned with the institution of the chief justice of India.

Nariman is among the most qualified persons in the country to comment on the Supreme Court. Over 50 years of practice in the court and observation of its working from close quarters have given him the right and expertise to judge it. He was associated as a lawyer with some of the most important cases that the court decided, and has seen the court evolve over decades. He deals with many key judgments and events, like the Kesavananda Bharati case and supersession of judges by the Indira Gandhi government in 1973 and 1975. The idea that runs through the entire book is the need to uphold the institutional status of the Supreme Court. He thinks that if a judge has complaints about the functioning of say, the collegium, he should quit and then complain. He thinks the biggest challenge for the court is from within, and so the suggestion is: please do remember that citadel never falls except from within

Such a fundamentalist view of the CJI’s powers is not easy to support because it might lead to denial, and even miscarriage of justice. The country has seen even single judgments, delivered by single judges, changing its history. So the insistence of standards of conduct need not always be taken as an attack on the institution of the CJI or the Supreme Court. It is unfortunate that individual judges or a group of them had to stick their neck out, but their conduct has to be judged in its context.

The book is not just about the Supreme Court. It is a collection of eight essays which deal with other issues and subjects, though they are directly or indirectly related to the court or the law.

Some of them are expanded versions of articles or speeches. He is concerned about the rise of majoritarian attitudes and policies in the country and wants the minorities to be protected more than ever before. Issues like defamation and Article 14, which is the equality clause in the Constitution, are also analysed and commented on.

There is one essay on his experiences in parliament where he was once a nominated member. The last two essays are about two persons whom Nariman admired and had high personal regard for— Justice V R Krishna Iyer, whom he describes as a super judge, and a lawyer friend, R N Trivedi. Both are no more. The essays give a personal dimension to the book which otherwise deals with some of the most important legal and constitutional issues and concerns in the country. There is sometimes an anecdotal touch to the essays. Personal experiences and incidents are also described in some essays, but they are largely serious.

It is not a surprise that Nariman considers the Constitution bigger than and above the Supreme Court or Parliament. This idea of the supremacy of the Constitution is sometimes forgotten in the midst of controversies that periodically erupt on the relative powers of the organs of state. He is committed to its basic ideas and upholds and defends them with passion.

There is much information and erudition on every page of the book and many insights which make the reader wiser and sometimes worried. There is very little legal jargon and even a layperson can read the book easily. There are copious references which show the range and depth of the writer’s scholarship. The book should be of great value to lawyers, students of law, everyone interested in the working of the Constitution and the courts and even to a lay person.