'Discussions about new Constitution should be throttled at the start': Fali Nariman

Nariman's new book looks at all the 395 articles and amendments

32-Fali-S-Nariman Fali S. Nariman | Sanjay Ahlawat

There is an old-world charm to the spacious drawing room in the south Delhi home of the grand old man of Indian law. The vintage furniture, the stone-covered accent wall, ceramic souvenir plates, China figurines collected over the years, family photographs from different decades and an old clock going tick-tock evoke nostalgia for a time gone by.

Fali S. Nariman, 94, walks in slowly and occupies his favourite armchair. Old world manners and a certain panache are the hallmarks of the veteran jurist. With a lifetime spent in the world of law, many a time at the centre of milestone events, Nariman's is arguably the most respected voice in the Indian legal system.

The eminent lawyer had begun his practice in the year the Constitution was enacted―1950―and his journey as a practitioner of law runs parallel to the many tests that the document went through.

His new book You Must Know Your Constitution takes a look at all the 395 articles of the Constitution and the amendments made up to July 31, 2023. It is scholarly, drawing from a lifetime of research of law. The exercise is made all the more invaluable by Nariman's recollections of critical cases.

In an exclusive interview with THE WEEK, Nariman talks about a range of topics, from the ongoing debate on whether we need a new Constitution to the Supreme Court's judgment on same-sex marriage to politically vexed issues such as reservation and the Uniform Civil Code (UCC). Excerpts:

Q Our Constitution has lasted for more than seven decades. What is the secret behind its enduring quality?

A It is a matter of the country's luck because a constitution is not expected to last more than 20-odd years. That is the expectation around the world. That has been the experience also, except that some constitutions last very long like the US Constitution. In Britain, they don't have a written constitution, but they have managed for hundreds of years to keep conventions without any writing at all. We are fortunate that first the Constitution got written, and got enacted. It almost never did, because of language problem, because they couldn't decide on what is the national language. So they instead said we will have two official languages, Hindi and English. And that's how it has jogged along for 70-odd years.

Q So you say we are lucky that our Constitution has lasted this long.

A Absolutely. It is the one thing that has kept this country together. The moment you talk of no Constitution or another Constitution, everything will unnecessarily splinter, which is not a good thing for a nation like India.

34-I-am-in-a-minority On [same-sex marriage], I am in a minority in my own family, because I take the view of the majority decision of the court and not the minority | Salil Bera

Q One of the most important interpretations of the Constitution by the Supreme Court is the basic structure doctrine. Of late, people are raising questions about it, such as former Chief Justice of India Ranjan Gogoi and Vice President Jagdeep Dhankhar.

A I don't agree with that at all. We must get into the history of the basic structure doctrine. For years together, the Supreme Court didn't find any part of the Constitution that was immutable because the Constitution itself says that every article can be amended. And ultimately, they came upon this solution, that each and every article can be amended, but not the pillars of the Constitution. That is the basic structure. Now, what are the pillars is a matter you must leave to the final court to determine.

Q We have a discussion happening on whether we need a new Constitution.

A That discussion should be throttled at the start. You will never be able to get a Constitution drafted in our country, because please remember, the Constitution was drafted at a time when there were only 350 million people in the country. And today, we are four times that number. So it is an impossible sort of task. The better thing is to think of how to make this country one. The unity of the country is a very important thing, more than all this disparity and all the fissiparous tendencies going on between different political parties.

Q Amidst this feeling of growing intolerance, has the Supreme Court lived up to its duty of safeguarding the rights of the people?

A Yes, it has tried to. There is no point in blaming the Supreme Court. It has had its ups and downs. There have been very good judges, there have been judges who have not been so very good. But that doesn't affect the structure of the Constitution. The structure has to remain.

Q There is a view that the Supreme Court has failed to dispel the feeling that it is working under political pressure.

A I don't think it is working under political pressure. During the emergency, it is true there was this feeling, which was justified, that the courts were also doing something at the dictates of the government. But I don't think that today this is a correct assessment at all. The courts are trying to further the aims and objects of the Constitution. It all depends on how you look at it. If you want to criticise somebody, there are 100 ways in which you can do it.

Q Some critics say since the ruling party has a brute majority, it does not feel the need to reach out to the other side.

A That is the problem. You will see in my book, I have mentioned that this super majoritarianism has not improved the idea of unity. It has created more disparity than unity. Therefore, somehow, although coalition governments take more time to decide, perhaps it is the slower person who ultimately wins in the end. This super majority does not help. Because then you want to emphasise that what you say is absolutely correct and what everybody else says is absolutely wrong. And trying to dissolve (state) governments, which do not take the same view as the Centre is a very bad principle. And that has been the hallmark of the major political parties throughout our 75 years. The Congress did it. The BJP is doing the same thing. Keeping the country together is far more important. Unfortunately, we don't have a Gandhi today.

Q Your views on two recent judgments of the Supreme Court―same-sex marriage and rejecting the plea of a woman to abort a 26-week-old foetus.

A On the first, there are vast differences of opinion. On this, I am in a minority in my own family, because I take the view of the majority decision of the court and not the minority. My grandchildren, my children, they all have different views. Until we have a consensus, there will be these fractured views particularly on things that are so delicate.

Q The chief justice was in the minority, which is a rare occurrence.

A It has happened before, but it is rare. The chief justice and the next senior-most [were in a minority]. But that's how our country progresses because there are different views. At least we express them. It is not as if there is an autocracy where someone says my view is the correct view and you have no business to mention your view.

Q And, the abortion plea?

A The court seems to have gone on the wording of the Act about termination of pregnancy and left it at that. How Parliament will determine it, I don't know. These are all very vexed questions. I don't think you can determine constitutionalism merely by taking two or three cases and finding out what's the reaction of people. Their reactions are bound to be different.

Q On same-sex marriage, there is huge disappointment in the LGBTQIA+ community.

A Correct. Because they have said now Parliament has to do it. And Parliament probably won't do it. That's how it is, until people are ready for it. That's the same thing with regard to the Directive Principles, the UCC. Is the country ready for it?

Q On the UCC, you take what you call a 'non-populist minority view'.

A We have tribal communities, which have different sets of personal laws. We have people who are at different stages of education in our country. And therefore, it is not possible to completely divorce or throw away the personal laws. The Constitution framers actually said that though this will be fundamental to the governance of the country, these principles are not to be enforced by the courts. You have to be ready for uniform civil code to be enforced. For instance, if you take Goa, they are ready to have a uniform civil code because they have the old Portuguese system. But then you ask the entire country, they won't be ready like that.

Q In your book, you are critical about the collegium system for appointment of judges.

A I have been canvassing for the view which our former chief justice [M.N.] Venkatachaliah had proposed when he was chairman of the review committee of the Constitution many years ago. And in 2003, that particular scheme was put in a bill in the Lok Sabha. That bill was not passed because elections were called and the bill lapsed.

Q We have been seeing a tug of war between the government and the court over appointment of judges.

A It is not the business of judges to appoint or transfer judges. It is the business of some other commission. And that's why I like the idea of the Venkatachaliah Commission consisting of five people―three judges of the highest court, the law minister and an independent person to be appointed by the prime minister. But the majority must remain with the judiciary. Otherwise each government would appoint judges that it wanted.

Q How do you view the controversy over the procedure for appointment of election commissioners? The Supreme Court had laid down a procedure.

A It was not accepted by the government. A majoritarian government has its own way. And that is why it prefers not to consult the chief justice of India. That is a matter for Parliament to decide.... The court's judgment is correct. But the government has said no.

In my view, the three election commissioners should have the same status as the Supreme Court judge―that is to say, not removable, they have a certain term. So that we foster a spirit of independence in the Election Commission. We must have elections that are totally above board, and therefore, there should be no whisper that someone is preferring one particular group.

Q You feel that reservation has devolved into vote bank politics and the Supreme Court has failed to provide a clear direction.

A We have the equality principle under Article 14, but then we have exceptions under Articles 15 and 16. And they keep adding exceptions upon exceptions.… But now everybody considers themselves backward merely because of his caste. Nobody looks at whether a person is economically well-to-do or not.

I still remember, one state in India years ago had said, a small state in the south, that there are no forward castes in our state, which is impossible. But that happened, and it was merely a political gimmick. A person who belongs to the backward caste, suppose he is a judge of the Supreme Court, he does not deserve to have any special benefits, his children do not deserve any special benefits, but yet, they take all those benefits even if he fills a very high office in the land.

Q We have demands from dominant castes like the Marathas and the Patidars for reservation.

A And now the Muslims say that they should have reservation even though they do not believe in the caste system. There are Pasmandas and others. Everybody wants to be seen as more backward than others. There is an old judgment of the Supreme Court where the court has castigated this―that people will come to believe that the more backward you are, the better you are in this country.

Q Sedition continues to be in our statute books.

A Section 123A defines sedition as meaning that every citizen should have affection for his government. If you have a democracy with a government and an opposition, how can you have affection for the government if you are opposing? Unfortunately, a judgment of the Supreme Court of 1965 has upheld that principle. The Supreme Court is now going to consider and hopefully do something about that section.

Q How optimistic are you that our Constitution will endure in the future?

A We have to nurture it. We have to be optimistic.


Author: Fali S. Nariman

Publisher: Hay House Publishers India

Price: Rs899

Pages 516