Known as much for his courage of conviction as for his straight talk, Fali Sam Nariman, 87, is a living legend of the legal fraternity and often spoken of as the 'Lion of the Bar'. After attacks on the minorities in the first few months of Narendra Modi becoming prime minister, he said Hinduism was losing its traditional tolerance "because some Hindus have started believing that it is their faith that has brought them political power". When the Arunachal Pradesh and Uttarakhand governments were dismissed and President's rule was imposed, he wrote it was time to call it "prime minister's rule". He also argued passionately and successfully against the National Judicial Appointments Commission Act.
Last month, Nariman appealed to President Pranab Mukherjee to guard against attempts to muzzle dissent and cautioned against a growing perception that the country can be more effectively governed only when all executive powers lie with one person. In an interview with Ushinor Majumdar, Nariman discusses issues of freedom, judicial independence and the perils of a majoritarian government. Excerpts:
At a recent book launch at Rashtrapati Bhavan, you batted for the parliamentary system of governance, arguing that, for a democracy to function effectively, "there must be dissent and some consequential disturbance as well". What prompted this note of caution?
Because we shouldn't have a presidential form of government. Whenever a majoritarian government takes office, the urge to take control over the state is immense. This has happened earlier, during the late 1960s and early 1970s, when the Congress was in complete control and tried and failed. It passed legislation permitting Parliament to amend the Constitution. It failed only because the Supreme Court invented the concept of basic structure and said you cannot amend the Constitution so as to destroy its basic structure. If they had not done it, we would have a Nehru-Gandhi dynasty. That's my apprehension. Now, this should not happen because of this (NDA) majority government.
What prompts you to say so now?
The way they are toppling state governments so that all states have one party in government and therefore there will be one-party rule (in the country). I don't like one-party rule. I like more parties, whatever they are. The more noise there is in democracy, the better.
You mean chaos?
No, not chaos--but peace and quiet don't go with Indian democracy. We must have more dissent and you must be more tolerant of dissent. The Congress government at that time (1960-70s) was intolerant of dissent and that's why it imposed the Emergency. That's why we resisted--some of us--and that's why I resigned as additional solicitor general. Though it's history, people must realise this today. It's not this particular BJP-led government I'm after. When the Congress was in majority, they wanted to convert everything into Indira Gandhi's government and make it an Indira Gandhi state forever. We have to be very careful.
Is there any free speech in this country any more, to allow dissent?
Free speech is always there, and we have the judiciary to protect free speech, the Constitution and our fundamental rights. Even if fewer people fight for these, we will still have fights in court over it. So there is nothing to worry about, because ultimately free speech will be protected. We don't have ji huzoor judges like during the Mughal era. They might lean towards governments sometimes, as they are entitled to--because government policies are to be advanced and fulfilled--but at the same time, we have to ensure that fundamental rights are fundamental and remain important.
Do you think the Constitution is safe in the hands of the current government? Are the minorities stifled?
Yes, it's safe in the hands of any government--but with an independent judiciary. It makes no difference if it's a Congress, BJP or JD-U government. The minorities are not stifled, but I'm worried they may get stifled. We must be guarded and protect ourselves. Everyone must be conversant with the fact that we are not the same race of people. We are different types of people in one country, following different ways of life, religions, eating habits. We have to accommodate everybody and that is why we must follow what Mr Atal Behari Vajpayee greatly encouraged--inclusiveness. Today, in certain quarters, this is lacking.
Any specific examples?
You read it every day. We find there's a distinct slant against certain minorities in India, which shouldn't be followed at all. We should have a more inclusive policy.
Following a public debate, there was a discussion in Parliament about the RTI being diluted.
Yes, it is, and unfortunately, even the previous government did the same thing. They don't appoint RTI commissioners. Therefore, we have to have dissent, and we do have people who push things along. There must be more criticism and state legislators must act. State assemblies don't meet often enough and there's not much discussion or debate in both Parliament and assemblies. But we do have an independent press and an independent judiciary. The press is a great safeguard of our democracy--and I mean the printed paper, which is much more important than the electronic media.
In the Aadhar case, the attorney-general recently said the right to privacy is not a fundamental right. What do you think?
You ask him why he said so. It's not just about privacy. There are two issues. The dangers are that in this electronic age, in which everything is electronically controlled, there is the danger of a government assuming the role of surveillance of every aspect of an individual. This is prevalent not just in India, but globally. In advanced countries, where technology is moving very fast, people are greatly concerned that everything every individual is doing will be recorded and stored somewhere. It's not just the privacy aspect; it's also that what every person says or does can easily be controlled. That encourages dictatorial tendencies--more in the West, because of its immense technological improvements. Data keeps getting tracked, and because of terrorist threats, there are good excuses for doing so. When it's not just about terrorist threats and becomes an invasion of people's lives, not just their privacy, we should avoid that.
Two recent judicial transfers were much criticised. One was of the Uttarakhand chief justice.
This is all your fault, because you, the media, don't find out. Why didn't you phone the Chief Justice of India's office and find out why the Uttarakhand chief justice was transferred? They'd have told you it was because, six months ago, he had himself requested a transfer as the climate didn't suit him. He has been moved to a bigger court. You take two and two and make it 22. You claim that a judge who gave a particular judgment was transferred.
So are you saying Justice K.M. Joseph's transfer--following his judgment against President's rule--was a coincidence?
It was not a coincidence, but the transfer was in the offing. It was a momentous judgment he delivered but, being a man from the south (Kerala), he could not adjust to the climate (of Nainital). The implication that all of you have given the public is that he was transferred as a punishment and the media is responsible for this. Please publish this.
How did you react to reports that, at a recent public function, the CJI was reduced to tears over the government's delay in judicial appointments?
The government hasn't yet adjusted to the fact that its favourite NJAC Act was struck down. It has apparently caused a bit of disquiet in government quarters. During the time (of the CJI's speech), judicial appointments were pending and that's why the CJI was (upset) about so many vacancies. He wasn't reduced to tears, as the media claims, but it was a cry of anguish about there not being enough judges to pronounce verdicts, which leads to a lot of dissatisfaction. That's perhaps the only reason why this happened. But I hope it will get resolved, sooner or later.
You spoke to the CJI after the incident. What's playing on his mind?
They are trying to sort it out by recommending filling up vacancies in the HCs and they are also filling up vacancies in the SC. By mid-May, we will hopefully get results. The country can't move if the judiciary can't move; everyone has to move in tandem.
When it comes to judicial appointments, you favour neither the NJAC nor the collegiums.
I told the A-G and the judges in court, and it is recorded in the dissenting judgment that "I (Nariman) will withdraw my petition if you accept ex-CJI M.N.R. Venkatachaliah's formula of a national judicial commission comprising "three seniormost judges of the SC, the law minister and one eminent person". But they didn't want to do that, because the idea is to control who appoints (judges). We have found that unless it is the judiciary that has the last say in who would be a judge, we will lose our independence. We can never give it to the government. There is always a tussle, but the last word for the appointments has to be with the CJI.
But when you talk about three seniormost judges...the fact is not all senior judges of HCs make it to the SC.
Yes, they don't--but that is when you have to depend on your judges for their fairness. By and large, the present appointments are pretty good. They are chief justices of merit and people who have done well in their judging careers over the years. They have good certificates of merit from the bar and people who know about it.
But then where is the transparency?
You can't have everything transparent. You can't publish everything about someone who is not appointed. Can you say, for instance, that someone is not appointed because the other person is more competent? That'll be counterproductive. Transparency is good, but can only be about whom you have chosen--not about whom you haven't. Everybody wants to know something bad about people. That's very dangerous in a country that boasts of an independent judiciary. The media must show a little more restraint, because everything can't be transparent. This is not England or America. Things happen differently here.
Do you mean a collegium-endorsed quality certificate?
Yes. Or a non-certificate. Unless there is something monstrously wrong, like corruption, which must then be disclosed. Otherwise, by and large, you must leave it.
You recently said there is a need to revisit constitutional judgments based on a contemporaneous context. Do you also feel that certain parts of the Constitution should be reviewed?
We will never be able to review the Constitution in a country like ours. You will have to accept the Constitution like you accept God virtually. You can add or subtract a few provisos in the machinery here and there but you have to live with the Constitution. We, in India, are 1.3 billion and everyone has two opinions, so we can never reframe a Constitution like this and the country would break down. The country must remain united and we must remember that our greatest asset is our diversity and enormousness. That's why it's everyone's business to live harmoniously.
Are corporates interfering with the law?
That has to go. These corporates are becoming too big to handle, much like what we used to say about models earlier--"too hot to handle".
There is an Article 356 for President's rule in the states, but nothing similar for the Centre. And Article 356 has been often misused.
It has been misused many times. In the first place, it shouldn't be called President's rule, because that alerts a court that a president has applied his mind. No, he hasn't. It's really PM's rule. That should be the very last resort and shouldn't be encouraged at all. That's why I applaud the Uttarakhand HC judgment. I don't know and don't care what the SC does but the HC judgment is the correct judgment and it ought not to be upset at all. (Later, the SC upheld the HC verdict.) That's my view and the judge who passed the judgment is a very important judge. He is the son of Justice K.K. Mathew, one of our great judges of the Supreme Court.
How do you react to criticism about judicial overreach?
PILs are an indication that the public is fed up with what the government is doing. In the old days, you couldn't approach the courts if you didn't have an interest in the case. That's gone now thanks to our judges. If you are reaching out to the public, it is never overreach. Because, at least in theory, they (the courts) aren't doing it to protect judiciary's interest but the public interest.
A shorter, edited version of this appears in print