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CHANAKYA NATIONAL LAW UNIVERSITY

The State Of Nation-Fali.S.Nariman

LAW AND LITERATURE

Submitted to: Submitted by:

Pratyush Kaushik Shambhavi

(Faculty, Law & Literature) Roll no.1644

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TABLE OF CONTENTS

Acknowledgements 4

Research Methodology 5

Chapter-1 8

Introduction

Chapter-2 10

About The Author

Chapter-3 13

Nariman As A Critique Of Law

Chapter-4 17

Pertinent Legal Issues

Chapter-5 20

Narrative Style

Chapter-6 23

Conclusion

Bibliographhy
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DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the LL.B (Hons.) Project Report entitled “The State
Of Nation By Fali.S.Nariman” submitted at Chanakya National Law University, Patna is an
authentic record of my work carried out under the supervision of Mr. Pratyush Kaushik. I have
not submitted this work elsewhere for any other degree or diploma. I am fully responsible for the
contents of my Project Report.

Shambhavi

Chanakya National Law University

Patna
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ACKNOWLEDGEMENT

Any project completed or done in isolation is unthinkable. This project, although

prepared by me, is a culmination of efforts of a lot of people. Firstly, I would like to
thank our Professor for Legal Language and Communication skills, Mr. Pratyush
Kaushik for his valuable suggestions towards the making of this project.

Further to that, I would also like to express my gratitude towards our seniors who were a
lot of help for the completion of this project. The contributions made by my classmates
and friends are, definitely, worth mentioning.

I would like to express my gratitude towards the library staff for their help also.

Last, but far from the least, I would express my gratitude towards the Almighty for
obvious reasons.
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RESEARCH METHODOLOGY

 Method of Research

The researcher has adopted a purely doctrinal method of research. The researcher has
made extensive use of the library at the Chanakya National Law University and also the
internet sources.

 Aims and Objectives

The aim of the researcher is:

1.To do an analytical study of the book written by Fali.S.Nariman

2.To understand the realation of this book with the Indian Constitution and law.

3.To do the critical analysis of the writing pattern of Fali.S.Nariman

 Scope and Limitations

Though the study of the judicial review is an immense project and pages can be written
over the topic but due to certain restrictions and limitations the researcher has not been
able to deal with the topic in great detail.

 Sources of Data:

The following secondary sources of data have been used in the project-

1. Books

2. Websites

 Method of Writing:
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The method of writing followed in the course of this research paper is primarily
analytical.

 Mode of Citation

The researcher has followed a uniform mode of citation throughout the course of this
research paper.
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CHAPTER-1

INTRODUCTION

A definitive, analytical and meticulous account of the present state of the nation – from a
constitutional perspective – by one of India’s most respected legal luminaries.

An ardent defender of the Constitution of India, Fali Nariman has today attained the status of
an outstanding lawyer who strongly believes in the rule of the law and stands by his
convictions. In this timely volume, the author highlights crucial issues that the legislature, the
executive, judiciary, the bar and the common people have to deal with virtually on a day-to-
day basis. His main focus is on corruption at various levels and in ‘hallowed’ institutions,
including the judiciary.

The author contends that the legislative and executive wings of the government – the elected
representatives of the people – were (and are) expected to provide for the welfare of the
people. He points out that they have failed miserably simply because making of laws is not
enough; applying and enforcing laws – which are also the primary duties of the government
– have left much to be desired. Consequently, it is the judiciary that tells the government
when and how to distribute excess food, what crops to grow and what not to grow, which
economic projects are good for the country and which are not, and what fuel should be used
in our vehicles and whether 2G/3G licenses should be allotted only through auctions! The
judiciary is hence accused of overreach!

The contents also throw light on other important subjects such as: the implications of
reservations for certain sections of the population (including minorities); the true purpose and
significance of the Constitution; Centre–state relations; and whether the Constitution has
benefited the common people over the years.
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This is a book that is absorbing as well as thought-provoking that will make the readers put
on their thinking caps.
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CHAPTER-2

ABOUT THE AUTHOR

Fali Sam Nariman is a distinguished Indian Constitutional jurist and senior advocate to the
Supreme Court of India since 1971 and has remained the President of the Bar Association of
India since 1991.1Nariman is an internationally recognised authority on international
arbitration. He is one of India's most distinguished constitutional lawyers and he has argued

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several leading cases.He remained Additional Solicitor General of India May 1972- June
1975.

He has been awarded the Padma Bhushan (1991), Padma Vibhushan (2007)and Gruber Prize
for Justice (2002)2 and has remained nominated member of the Rajya Sabha, the Upper
House of the Parliament of India for a term (1999–2005).Also honoured by NDTV among
the 25 living Indian legends on December 14, 2013.

Born in 1929 in Rangoon to Sam Bariyamji Nariman and Banoo Nariman, Fali did his
schooling from Bishop Cotton School, Shimla. Thereafter he studied B.A. (Hon.), in
Economics and History from St. Xavier's College, Bombay (now Mumbai), followed by a
Law degree (LL.B.) from the Government Law College, Mumbai in, 1950, after standing
first in the Advocate's Examination and been awarded the Kinlock Forbes Gold Medal and
Prize for Roman Law & Jurisprudence.His father initially wanted him to write the Indian
Civil Service Examination. Since he could not afford it at that time, he chose law as his last
option.

Nariman started his law practice at the Bombay High Court. After practicing for 22 years, he
was appointed a Senior Advocate in the Supreme Court of India in 1971, a position he retains
to date. He said that "My senior's senior, Jamsetjee Kanga was my mentor. He was like a
father figure to me. He died at 93 and he is the one who, at the age of 92, told me that he was
still learning. He had a tremendous memory and so does my son Rohinton. He was an
Ordained Priest and so is Rohinton."[8]

Nariman was instrumental to the development of the Indian Constitution's Law. Nariman was
Additional Solicitor General of India from May 1972 to 25 June 1975, resigning from that
post upon the Declaration of Emergency on 26 June 1975.

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https://www.britannica.com
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Nariman argued in favour of Dow chemicals (the owned by Union carbide) in the infamous
Bhopal gas disaster case, which he admitted as a mistake in recent times.He was instrumental
in getting a deal between victims and the company outside court, which offered an amount of
$470 million to the victims. He also argued in the famous case of the Supreme Court AoR
Association, in which the Supreme Court took over the appointment of judges in the Higher
Judiciary. He also appeared in many important cases like Golak Nath, S.P. Gupta, T.M.A.
Pai Foundation, etc.

Nariman is the recipient of the Padma Vibhushan (in 2007) and Padma Bhushan (in 1991),
respectively the second and third highest honors granted to civilians by the President of
India. Both awards were for Nariman's contributions to jurisprudence and public affairs.
Nariman was awarded the Gruber Prize for Justice in 2002.He dedicated his awards to his
alma mater Bishop Cotton School in Shimla.3

His books serves as an outstanding scholarly treatise on the Constitutional Law, its
interpretation and application. His concern as a citizen of India laces all his writings and
remains an inspiration for every student of law.

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CHAPTER-3

NARIMAN AS A CRITIQUE OF LAW

The distinguished legal luminary Mr. Fali Nariman recounts his varied experiences,
anecdotes,reflections and memorable instances in his practice to provide a number of useful
practical tips tothe budding lawyers who desire to enter the profession. He persuasively argues
about the need to do away with certain commonly prevalent vices and pitfalls and at the same
time inculcate good habits which will form the recipe of success. The personal integrity and
dedication to the profession rather than the clien t is his foremost lesson. He recounts
as to how one should not fall in the ‘sporting chap syndrome’ of filing a case just because the
client wishes to, despite having full knowledge that there are little chances
of s u c c e s s . H e a l s o c a u t i o n s u s t o n o t f a l l p r e y t o t h e m a d n e s s o f
c i t i n g c a s e l a w s w i t h o u t understanding the facts and gravity of the
issues first, a condition he refers to as ‘case law diarrhea’. At the same
time, he impresses upon the need to have knowledge of the
r e p u t e d judgments up to the date because these form the armory of the lawyer. He
beautifully explains the importance of being clear and succinct. One should be simple and
methodical in his approach and think logically like a lawyer and not like a philosopher.4T h e
anecdotes which he share s form an endearing reading as they are
i n f o r m a t i v e a n d v e r y educative in nature. He gives us the practical advice of arguing the
worst argument first and then moving on to the less worse of the two, as the court
would be more sympathetic in that case having already cornered the lawyer before.
The importance of erudite scholarship through the incident between Justice Bachawat
and advocate Vishwanath Shastri as well as the experience of Blanco while writing
Halsbury’s Law of England is marvelous and even Mr. Nariman feels envious of such
scholarship which he finds is rarely on display these days. H e a t t r i b u t e s t h e s u c c e s s
ladder of a young advocate in the legal to the phenomenon
o f Parkinson’s Law which means the amount of work available is directly proportional to the

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better application of mind, more experience and greater sharpening of the mental
faculties and vice versa. He takes pains to distinguish the difference between ‘work’
and ‘monetary reward’ and calls a fixed monetary reward as the worst enemy of
hard work since there is no incentive to work in that case. Then he moves on to
underscore the point that it is the duty of the client to state a case on the point that is being
argued in the court even if it is can be distinguished on facts but cautions an advocate to never cite an
overruled case. In his opinion , it is also always better to understate a case rather than overstate it because
of the natural urge of the judge to cut down the lawyer to his size if the advocate professes that
the law is ‘watertight’ and immediately demands a judgment in his favor . This may be counter
productive. Another learned advice which comes from Mr. Nariman is to not ‘count your chicken before
they hatch’ meaning thereby that one should never be too cocksure about winning cases. He explains as
to how the unfortunate death of Chief Justice Chainani of the Bombay HC in 1960s led to
are versal of fortune for him as he lost his case, through the presiding judge (Justice Tarkunde) was kind
enough to let him know that the notes on the files of Justice Chainani showed that he was
ready to deliver the judgment in his favour.Mr. Nariman, having a wealth of experience from his
long practice in the court also refers to certain phrases that must be avoided as they risk
the danger of offending the judge like ‘I have never heard of such a thing’, and ‘Your
Lordship will bear with me’ 5. He also points out the fallacy of exaggerating arguments,
use of rhetoric, over smartness, the folly of being funny or cracking jokes and putting
absurd arguments by referring to interesting incidents. Anger and vitriol can be the nemesis of
any lawyer as is evident from Mr. Nariman’s personal experience as well his narrations of Lord
Eldon and Judge Ruth Ginsberg. Another golden lesson is to have a pleasant demeanour
and resist from quarreling with the opponents or being nasty with them as the major part of
any advocate’s life will be spent with the colleagues at the bar and a ‘sense of camaraderie’ at the bar is
must for preservation of the continued sanctity. Another important message that we draw is to address the
court in a correct manner befitting thestature of the judicial hierarchy. He also gives a stern
warning against making an incorrect statement consciously as this might lead to the judge ‘mentally
blackballing’ the lawyer which is practicing lawyer’s ‘greatest occupational hazard’ as his statements are
not trusted on their face value. A judge should never be criticized in public or the Bar or before clients. If
a lawyer is truly aggrieved and unhappy he should take the advice of a balanced non -
opinionated senior lawyer and go in appeal if necessary but not resort to cheap
gimmicks. Patience, gravity, dignified silence and the art of learning to lose with

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dignity as only one side can win a case are essential qualities of a legal professional. As
the media has become very important these days, Mr. Nariman points the folly and idiocy In
giving interviews or talking to the media in cases where a lawyer has appeared. This
not only smacks of despicable publicity but is also unfair to the judge as well as the
opponent as they cannot retaliate and refute. A criticism of the judgment is best appreciated if
it comes from third parties who are disinterested and can take an objective view. Mr. Nariman
alludes to the instance of the great legal luminary, Mr. H.M. Seervai who, in his leading

Volumes of Constitution

severely criticized the Supreme Court’s decision in Escort’s case where Mr. Nariman had l o s t
the case in the Supreme Court in appeal after winning the same in the
High Court. The happiness he felt on reading those passages was immense
a n d f u l f i l l i n g a s h i s s t a n d w a s vindicated even though he had lost the case in a
court of law. The same would not have been true, if he as an interested party went around
criticizing the judgment which would have looked bizarre, absurd and devoid of respect for the
judiciary. Finally, the art of time management is one of the key traits any l awyers
need to master. The inadequacy of time should never be an excuse especially when it’s pre-
set. Furthermore, the true skill of a lawyer lies in hard work and forensic skill rather
forensic eloquence, flamboyance or verbosity especially in the modern times where time is
scarce. Also, according to Mr. Nariman, the notion that great cases are won or lost
because of their inherent strength or weakness is fallacious because advocacy plays a
vital role as a judge is also human. He quotes the example of the great lawyer Mr. Kanhaiya
Lal Misra, the formed Advocate General of Uttar Pradesh. A lawyer should also have
an outstanding memory as the great lawyers like Bhulabhai Desai have exhibited this trait. Other
attributes are good sight and food hearing, good indicators that age has taken the better of an
advocate and its time to gracefully retire. Mr. Nariman has given important practical instructions
to the students of law. The treatise must-read for anyone who wants to practice in a
Court and make his own wa y. The author is courteous, modest, witty and very humble in
his approach and the beauty of his approach lies in the fact that he authoritatively delivers his
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message successfully without being too prophetic or preachy about the same and yet wins the
heart and head of the reader in terms of sound logic and behavioural sagacity.6

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CHAPTER-4

PERTINENT LEGAL ISSUES

In his book the state of nation Fali.S. Nariman argues about why transparency and accountability
are essential to ensure a corruption free judiciary.This is one of the biggest legal issues dealt in
his book.

He writes:

‘The profession of law (that includes lawyers and judges) is one in which there is still very little
transparency. When enacted laws are abstruse and unclear, we lawyers do little or nothing to educate the
public about them. Our clients are, quite deliberately, left ignorant of the 'mumbojumbo' that we utter in
courts; the vast majority of people can neither understand the purpose or tenor of prolix legal proceedings
nor can they comprehend the drift of judgments (often, of enormous length) handed down from the bench.
Under our Constitution, the higher judiciary enjoys pride of place-well-deserved no doubt-but its
inevitable consequence is to put justices of the high courts and of the Supreme Court on the highest
pedestal: on cloud nine.’

How are judges appointed? How are they selected and recommended? What are their shortcomings and
how are they remedied within the judicial fraternity? And why are judgments sometimes not delivered at
all or (more often) interminably delayed? Before the advent of the RTI (and even thereafter), such
impertinent queries were met with responses such as: 'It is none of your business to ask us questions' and
'we (the judges) know what is best for the system'. Similar attitudes have been exhibited by the higher
judiciary in other parts of the world.

In his book, Nariman has tried to give answers to all these questions which are still debated in the field
of law.

In India the higher judiciary has inherent (and almost unbridled) powers of contempt-even beyond laws
enacted by Parliament. And for that reason, the media and the whole lot of information-seeking agencies-
not sure of how the contempt law will be interpreted- are tight-lipped. No one dares come out with what
they believe to be the FACTS (in any matter pertaining to judges or the administration of justice) even
though the law (amending the Contempt of Courts Act 1971) now permits 'justification by truth' as a valid
defence.
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Such so much secretive matters of the system of law in India has been highlighted by Nariman in his
book.

A totally new perspective pops up in the mind of the readers.

In Nariman’s exploration and assessment of various issues based on constitutional tenets, the
‘state of the nation’ seems healthy only when these issues collide with the courts of law. Men
seem good, reason seems triumphant and government officials and leaders seem to be the
arbitrary children that they actually are, but all without feeling that this is cause for a tragic
gloom - because the parent is around to discipline them. We need the courts to overreach,
Nariman seems to be saying in all earnestness (with his characteristically profligate smattering of
exclamation marks in the text).

It has to be admitted that there is a genuine (almost perverse) pleasure in seeing leaders who are
consistently acknowledged to be the scourge of modern India being put in their place, being
given a public reassessment of their sense of importance. This is what Nariman provides
(drawing heavily on his 60 odd years of experience at the bar) through his numerous anecdotes
and mini case-studies - this is also what the courts Vs government drama provides to the
common man. It allows us to generate a healthy skepticism of the government and moves us
away from the ‘mai-baap’ mentality. The highest courts play a vital role in this.

While the Govt might see this as an erosion of credibility, and resent this incursion and
‘overreach’ Nariman seems to say that this is exactly what the doctor (constitution) ordered in
the first place: what a good governance really requires are institutions that have full cognizance
of their own fragility and of their own failures.7

Thus the majority of the book enumerates the state of the nation using the Constitution as a
yardstick and seems to imply that as long as we have wise men in the courts acting as zealous

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watchdogs of the Constitution, democracy is safe and if not progress, at least regress is
effectively checked.

This book heavily deals with various aspects of the 'nation' with reference to the provisions of
the Constitution as they relate to the functioning of the Legislature, the Executive and the
Judiciary and how such functioning, or the lack of it, has impacted the 'nation' and its citizens in
the over six decades of the existence of our Constitution. Among the important issues touched
upon are reservations in education and appointments in Govt jobs, the Centre-State relations,
fundamental rights, corruption, the higher judiciary and whether the working of the Constitution
has really benefited the common man for whom it was framed in the first place. To put across his
point Fali has quoted extensively from the Constitution, case laws not only of the Supreme Court
of India but also parallels drawn from judgments of US Courts and eminent jurists. This indeed
makes for very interesting reading.......though heavy stuff for those not particularly interested in
law.
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CHAPTER-5

NARRATIVE STYLE

Fali Nariman is a legal luminary of India , This book presents an insight into the various aspects
of Indian body polity, legislature , executive, Judiciary , the civil society . Mr Nariman has a very
engrossing style of writing and his flair of words is visible through his writing. He illustrates the
issues with various judgments and comparisons with US/UK legal traditions as well as quotes
them. Being a lay person , these illustrations are not heavy and that's where Mr Nariman keeps
the narrative open to all. He consistently opines the same when he critiques the Judges for
writing lengthy,verbose judgments !8
He also presents the prevalent malice of Corruption in our polity and offers some solutions in the
pages of this book. He also deals with the corruption of higher judiciary and presents some ways
in which they can be handled. Overall the book is a very interesting read for anyone who is
interested in Indian polity.

A renowned lawyer and constitutional expert that he is, Nariman has presented the extremely
tricky aspects of the longest written constitution in the world – the Indian constitution.

How the makers of the constitution intended some aspects of the document to be, how the
subsequent governments got the original intent watered down, how in spite of wholeheartedly ill-
intentioned governments trying to water down the pillars of the constitution some well
intentioned the judges have ensured that the spirit of the founding fathers has been maintained
intact more or less – all these are elucidated in great detail in this treatise, ‘State of the Nation’.

Nariman also presents, with relevant examples, the different instances wherein the President, the
Parliament, the executive and the judiciary had tried to exert their independence ( or superiority,
should I say ?). And that part reads like a thriller.

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We also get to know some snippets from history that we might not have been privy to, like :
•The first President Rajendra Prasad’s tussle with Pandit Nehru and his wish to assert his
Presidency
• How Raj Narain won the court battle against Indira Gandhi and challenged her election and
what Indira Gandhi did, in haste, to amend the constitution just before declaring emergency
• How even the fundamental rights were denied by Indira Gandhi citing a constitutional
amendment and how the subsequent Janata government amended that saying ‘even in case of an
emergency’ the fundamental rights cannot be denied to citizens.
• The working styles of the different presidents V.V.Giri, Sharma, Narayan, Venkatraman, Zail
Singh and Kalam.
• How Kalam indirectly asserted his Presidency by not following the prepared text and resorting
to a Tamil poem that he himself had written exhorting the parliamentarians to do their jobs and
not stage walk-outs for the flimsiest of reasons
• How Pandit Nehru didn’t have money for his tea in 1935 after an electon campaign and how he
and Lal Bahadur Sastri had to count the different coins that they had to pay for their cups of tea
at a railway canteen
• How Pandit Nehru had asked the Allahabad administration to raise, by five times, the annual
property tax that was levied on his ancestral home.9

Fali S. Nariman has had the ring side view of things and he explains his thought process with
ample references to various judgments of the US Supreme Court, leading British jurists and even
the then Chief Justice of Pakistan.

A great read for anyone who is interested in the working of the Indian constitution.

Mr. Fali S. Nariman, digging into his lifelong legal experience, has generously enriched the book
with real life examples, judicial cases along with his experiential wisdom to logically support his
arguments. Moreover, "common man" cartoons of the uncommon man R.K Laxman provide
much needed comic relief, amidst serious topical deliberation, apart from setting the tone for the

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The state of Nation – Fali.S.Nariman
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topic. Also Notes are information rich and provide holistic understanding to the readers.

Though there “may be” some occasional monotony for readers who are well versed in Indian
constitutional provisions (though “The state of the nation” is much more than mere elaboration
of bare constitutional provisions) and also for casual reader due to liberal usage of constitutional
articles, court cases.
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CHAPTER-6

CONCLUSION

In his book The State Of Nation, Mr. Fali S. Nariman, digging into his lifelong legal experience,
has generously enriched the book with real life examples, judicial cases along with his
experiential wisdom to logically support his arguments. Moreover, "common man" cartoons of
the uncommon man R.K Laxman provide much needed comic relief, amidst serious topical
deliberation, apart from setting the tone for the topic. Every section in this book begins with one
of the political cartoons of the legendary ‘common man’ (from the series of iconic sketches by
Laxman who used to express the 'state of the nation' more powerfully than what many serious
journos ever managed - a role that the amul ads now seem to be valiantly trying to fill) that
illustrates poignantly some of the issues that Nariman wants to address in it. Also Notes are
information rich and provide holistic understanding to the readers.

This book consists of mostly constitutional and legal discourse on historical and current state of
the Nation in social, religious, cultural and educational spheres, sprinkled with fresh insights
from the author. Preamble, Fundamental rights, Directive principles of state policies (DPSPs),
judicial review, Federalism and certain elaborations such as On Justice, Liberty, evolution of
Basic structure doctrine, deserve special mention for deep insights provided by the author.

The author has tried to pour all his experiences and knowledge about the field of law in this very
eminent work . This book tries to elaborate and focus on each and every minute points which the
other law books fail to explain.

This book is an incisive constitutional history of modern India - with the necessary heritage -
and some challenges and issues facing the nation from a respected and renowned legal luminary,
who had professional involvement in some of the episodes described and dissected here makes
for some illuminating reading.
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BIBLIOGRAPHY

Books:

1.The State Of Nation – Fali Sam Nariman.

2.Before Memory Fades – Fali Sam Nariman

Websites:

https://www.indiatoday.in

https://www.wanderingmirages.com

https://www.thetimesofindia.com

https://www.thehindu.com

https://www.overdrive.com

https://www.goodreads.com