Nariman’s views on the role of the judiciary are antiquated

“I’ve never had a humble opinion. If you’ve got an opinion, why be humble about it?”, declares American activist and singer Joan Baez in a quote in the latest book by Fali Nariman, India’s most renowned advocate. The book is titled God Save the Supreme Court And Other Opinions. The Baez quote is offered in the form of an advance apology and an advance warning to readers for a 300-page burst of personal opinions of Nariman on a hodgepodge of issues — the Supreme Court of India, judges, lawyers, legislators, judicial activism, legal advocacy, freedom of expression, minority rights, equality, defamation and tributes to late Justice V.R. Krishna Iyer and the late Senior R.N. Trivedi.

However, neither the apology nor the warning was required. Nariman’s opinions are, as always, full of humility and respect for others, embellished with memorable quotations, sparkling humour, brilliant insight, rare anecdotes and an inimitable commentary that only a great master like him can provide.

However, as the title, content and timing of the publication of the book appear to suggest, the book also has a very serious purpose — to influence judicial and public opinion against public airing of internal differences by judges, exemplified most prominently by the January 12, 2018 press conference of the then four senior most puisne judges of the Supreme Court expressing grave concern that the independence of the highest court of the land was in jeopardy because, among other reasons, politically sensitive cases were being assigned by chief justices to “preferred benches”.

Nariman strongly disagrees with public protest by judges against assignment of cases by the Chief Justice, saying, “When a chief justice (of the Supreme Court of India) ‘digs-in-his-heels’ and fixes the roster or determines the composition of benches not to the liking of any particular judge or judges, there is no option but to ‘lump it’ and await his departure from office at the constitutionally prescribed age of retirement. What is set out above is not only a rough-and-ready rule of prudence, but a strict rule of law as well.” This is because “fixing the roster and/or determining which judge or judges should constitute a bench or benches is one of the administrative duties of the chief justice himself (it inheres in the chief justice ‘in the very nature of things’).” For this reason, Nariman says, “it was a grave error of judgment on the part of Justice Chelameswar (Court No.:2) to direct by order the setting up of a Bench of five judges to hear a particular matter before him.”

Reflecting his strong disapprobation of judges expressing dissension in public, Nariman says, “I was greatly perturbed during the last few days (of August 2016) over an otherwise excellent and sober judge in the Supreme Court — then Judge No.5 in the hierarchy (Justice Chelameswar (sic)) — going public over the lack of transparency in the working of the collegium system..” Nariman delivers a strong message to sitting, former and future judges: “If a judge in the collegium doesn’t like the way the body functions (for lack of transparency or any other reason) he/she can quit and then complain why he/she quit.”

The title and content of one of the key chapters in the book is a dire warning to judges against ‘internal dissension’: “The Citadel Never Falls: Except from within”.

With utmost respect, Nariman’s views on this issue are antediluvian. They are out of place in a modern democracy in which the primary function of the judiciary is to secure the liberty and the rights of the people from violation by individuals, the State or other powerful social, economic and political forces. Judges are guardians of the liberty and rights of the people and have a fiduciary responsibility to the people. Transparency, accountability and institutional integrity of the judiciary, as well as whistle-blower judges, are essential to ensure that judges and courts discharge their responsibilities to the people to secure their liberty and rights.

In contrast, feudal ideas such as mutual personal loyalty and concealment of institutional failures from the public eye to uphold a (hollow) public image will only weaken and diminish judiciaries. What the four judges did last January was therefore heroic and praiseworthy and in line with their fiduciary responsibilities to the people. Justice Gogoi’s assertion at the meeting with the press that he discharged his obligation to the people was more historic than might first appear — it was the first assertion by a judge in the Indian democracy that his real accountability is to the people. In hindsight, it is clear that the timely intervention of the four judges effectively arrested the growth of worrisome trends.

It would have been very useful if Nariman’s book had addressed some key unanswered issues arising from the January 12, 2018 intervention of the four judges: Based on the cardinal principle Nemo iudex in causa sua — no-one should be a judge in his own case — what should be done when the “master of the roster” is faced with a conflict of interest in assigning a case because that case involves alleged wrongdoing by him? In such a situation, can the Chief Justice, as master of the roster, assign the case to a judge of his choice? Even while briefly protesting that the “world of law needs changing” (at 16) it is unfortunate that as important a jurist as Nariman comes down unequivocally against democratic change.

As we approach the thirtieth anniversary of Francis Fukuyama’s 1989 essay, “The End of History?” which prematurely announced the inalterable global triumph of Western liberal democracy, liberal democracy is on the retreat worldwide, especially in the West, and including in India, trumped by a resurgence of the far-right and the far-left. Now, more than ever, there is urgent need to renew our commitment to the essence of the idea of democracy, Swaraj, so eloquently stated in the Objectives’ Resolution of our Constituent Assembly —“all power and authority..are derived from the people”. This will require a fresh start as to how we see our judicial institutions and their relationship with “we the people”.

Nariman’s book, erudite and entertaining as it is, is a blast from the past we need to leave behind!

The writer is former Director, National Law School of India University, Bangalore