A Constitutional Czar par excellence bids adieu

If Justices Fazl Ali and Vivian Bose were asked to continue as Justices of the top court on an ad hoc basis upon retirement, why shouldn't Justice Rohinton Nariman be asked to do the same?
A Constitutional Czar par excellence bids adieu
Justice Rohinton Nariman

As a lawyer, I found there were many misgivings felt by communities about each other. I wanted to write a book on the gems of each faith and get it to the children. Children ask questions at home, they are inquisitive... I felt at least they should learn about each other's faith for a better tomorrow.

- Justice Rohinton Nariman

Justices Fazl Ali, Vivian Bose and RF Nariman. Do they have anything in common? Each one fit to be a Constitutional czar in the judicial hall of fame.

The foremost question is, if the first two were asked to continue as Justices of the top court on an ad hoc basis upon retirement, why shouldn't Rohinton F Nariman be asked to do the same after attaining 65 years on August 12?

He is physically fit and mentally agile, as ever. He is possibly at the peak of his prowess. It would be cruel travesty to let him retire. There is so much left in him to contribute to India.

What is so special about Justice RF Nariman? Everything that was special about Fazl Ali and Vivian Bose. They were no ordinary judges or mortals, so to say. They were born to become the iconic rock stars they were destined to.

Justices Vivian Bose and Fazl Ali
Justices Vivian Bose and Fazl Ali

To quote Joseph Choate,

“You will look in vain elsewhere for more spotless honour, more patient industry, more conscientious fidelity than among the honest members of the legal profession.”

The emphasis ought to be on the expression 'honest’. And Justice Nariman was among the honest best.

Or to put it even more felicitously, as Justice Felix Frankfurter said,

“There are some who are gifted. To see one side of a problem is easy. Almost everybody can do that. To see at least two, and as is often required more than two sides, takes a special training, found only in the legal profession.”

Justice Nariman epitomised these virtues and cultivated faculties. He was a devoted junior colleague of the legendary Nanabhoy Ardeshir Palkhivala, assisting him in cases like Minerva Mills, though just out of university.

Nani famously said,

“The Constitution constitutes the nation. Democracy is never a destination reached but always a beckoning goal calling upon every citizen to play his part in a dedicated spirit in the great endeavour of nation-building.”

Justice Nariman lived by this Nani speak, from the pulpit, as his pronouncements loudly proclaim.

Nani Palkhivala
Nani Palkhivalaourlegalworld.com

Every tribute that Nani paid to Soli Sorabjee or Fali Nariman applied to Rohinton as well. Add HM Seervai to this league. They say that the water in Seattle must have something in it to turn out Bill Gates, Jeff Bezos and Steve Jobs. We can assert that the Arabian Sea must have it too, to make our constitutional law dream team of Parsis.

Justice Nariman was a dedicated constitutionalist to the core. He was not an originalist in the Antonin Scalia mould. He was a liberal in the Louis Brandeis genre. For him, the holy book was divine. Not to be on the prayer mantle, but as a living and throbbing tool of life. He did not read it, he digested it. And not the Indian Constitution alone, but also the US, Irish, Japanese, Australian, Canadian, South African and the unwritten UK ones too.

His elephantine memory could recall, not paraphrase, the Articles word for word, syllable for syllable and punctuation to punctuation. And not as a ‘grammarian’ one ought not be, as Justice Mohammad Hidayatullah spoke. He breathed those constitutional principles and chiselled them in words, as in Justice KS Puttaswamy, while alluding to the dissents of Fazl Ali and Vivian Bose - as works of his soul mates - not to forget the dissent of K Subba Rao as well.

He could well have been a history professor, were he not a lawyer. There is no history yet to be written that he has not read. His face radiates and his words pour out in a torrent when he tucks into the French Revolution and the notions of liberté, égalité, fraternité. If you heard Nani’s budget speeches, you would see similarities, without a slip or a note. You can hear Justice Nariman literally turning pages from his memory books, as he regales his audience.

And mind you, he is a trained Parsi priest. And his passion for classical music rivals Soli Sorabjee’s for Jazz. And that would be saying something!

It would be a pointless and futile exercise to elucidate on the versatility of the man, as a judge in contracts, corporate law, legacy issues, criminal jurisprudence and more. He literally handheld the newly crafted Insolvency jurisprudence, and set the foundations.

“It is up to others to build on it, if they are good enough,” as Chief Justice Earl Warren said after the Brown v. Board verdict in 1954.

Like father, like son. Fali S Nariman, in all his works, including Before Memory Fades, has not fought shy of conceding that, "I was not always right. No one is infallible as law is a tricky business." One is certain that as a liberal constitutionalist, his son Rohinton would readily admit that he may have tripped on occasions. To err is human. That makes Rohinton even more of a star. Not a lesser one.

Forget not, just as the ‘Parsi Quatret’ of Seervai, Nani, Fali and Soli were literary czars too, with a poetic leaning, Rohinton has ease of access to form a ‘Parsi Quintet’. He was a one-man constitutional orchestra, a true scholar and polymath, if ever there was one.

In one of his speeches, he said,

”I have always wanted to be in academics. And come retirement, I may not be searching for space. I would love to go where I have always wanted to be.”

A mouth watering prospect from a constitutional czar par excellence.

The author is an advocate practicing at the Madras High Court.

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