Meeting Justice Rohinton Nariman in a Sunday Morning

Aristotle once wrote in his Nicomachean Ethics that there are four significant virtues for human beings, namely Prudence, Temperance, Justice, and Courage. There are a few judges who have courage and sense of justice, both. Hon'ble Mr. Justice Rohinton Nariman has been truly an exemplar judge and erudite historian, theologian and philologist, a great scholar of music as well as a courageous and meticulous jurist of our country. He did his Master of Laws from Harvard Law School in 1980-81 and taught by one of the finest jurists of the last century, Roberto Unger. He became Senior Advocate in 1993 in the age of 37 and also served as Solicitor General of India in 2011 before he was elevated as a judge of the Supreme Court of India in 2014. He delivered many landmark judgments, including Shreya Singhal v. Union of India. There are a few people with whom time moves too fast, but to count that experience takes ages. Justice Rohinton Nariman is one of those great jurists with whom a meeting appears an experience to cherish for the life-long.

Today, I along with my teacher Prof. Chanchal Kumar Singh have got the opportunity to meet him at his residence in Shimla where he comes every summer for a few weeks. The first lesson we have learnt that he is a hard task master in reading and research. He is consistent in reading and his passion for the books is visible in each word he speaks. After retiring from the Supreme Court of India Justice Nariman is working on various concepts in public law and theology. He has recently finished his work on religion and which may be published very soon in future. He has discussed with us various religious systems in the world and their common lessons such as compassion, suffering, and co-existence, etc. He admires Ashoka for his edict in which the focus was to learn other religions to enhance the meaning of one's own religion. Because, there are some common ethical postulates in all the religions and schools of religious systems. He also discussed the various philosophical schools in India such as Samkhya, Yoga, Purva Mimamsa, Buddhism, Jainism, Carvaka, and Ajivika. He reflected on the Taoism and its message of a natural way for the harmony and substantiated his argument with the example that how water is too soft but it cuts the mountain in a longer period of time to make its own way. 

Our discussion shifted in public law. We discussed the foundation of “basic structure doctrine” and its genesis in Indian Constitution. He differentiated basic structure doctrine from the doctrine of “implied limitation” and there is a reason to believe that basic structure is a constructed reality under Indian Constitution. He agrees with the first part of ratio of the majority judgment in Golaknath case that law under Art. 13(2) of the Constitution includes amendment under Art. 368 of the Constitution but disagrees with the second part of Ratio of the majority judgment which made distinction between power and procedure under Art. 368 of the Constitution. He mentions the four types of amendment procedures under Indian Constitution which prescribe changes but no one permits to repeal the basic features of the Constitution. He relies on the wording of Article 368 of the Constitution which talks about “change” instead of repealing the basic structure of the Constitution. He also refers the work of D. Conrad and believes that created power cannot subvert the source of power itself. In a question raised from the lectures of John Austin and writings of Carl Schmitt that if basic structure could be traced in the basic structure of society, Justice Nariman responded that the basic structure of Indian Constitution may be traced in the Constitution itself which has developed from the cherished ideals of Indian National Movement. In fact, in his opinion, Moti Lal Nehru in his 1928 report mentioned the principles of basic structure. Justice Nariman agrees that the doctrine of basic structure is significant for the Indian republican democracy to safeguard certain fundamental values enshrined under Indian Constitution. Justice Nariman has outlined the lacuna in interpretation in I.R. Coelho when the Court established a “double test” for reviewing law under the 9th Schedule of the Constitution. As per his opinion, any violation of a fundamental right may amount to the violation of the basic structure itself. There is no more fundamental than fundamental rights under Indian Constitution. There cannot be a hierarchy between fundamental rights. He is willing to work on the basic structure doctrine in future; his lectures on youtube on the basic structure doctrine exemplify his profound understanding on the subject. 

In a question raised by us about “Constitutional Morality”, he disagrees with the idea of developing another concept as a standard for judicial review which cannot be discerned concretely in the text of Indian Constitution. Though, he believes that the idea is not new and Justice Vivian Bose used to refer this concept in his judgments. Justice Nariman also suggested various reforms in the appointment and transfer of judges and believes that there should be a system of appointment in which the retired judges of the Supreme Court who have faith in the constitutional values must have a significant role to play along with the bar and the full strength of the Supreme Court judges. The body for the appointment of judges must have a fixed tenure of five years and judges must be appointed on the basis of maximum votes received by the nominees from the full strength of the Supreme Court judges. He has also suggested a constitution of the tribunal of the retired judge or judges of the Supreme Court in the matter related to Anti-Defection law instead of relying on the speaker who is always guided by political factionalism and convenience. 

We are also blessed to meet his wife Dr. Sanaya R. Nariman, a wonderful scholar who has authored many books on science. Her compassionate talk and graceful presence have made our Sunday morning really a wonderful experience. We are extremely lucky and blessed to get their affection and compassionate lessons about life and institutions in which we are living.