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The interpreter of legal maladies

Shyamal Majumdar | September 29, 2003

No one listened when he told the Rajya Sabha a few months ago that companies nationalised through an Act of Parliament had to be denationalised by another Act of Parliament.

But Fali Sam Nariman, 74, clearly had the last laugh when the Supreme Court vindicated his stand by restraining the government from privatising Hindustan Petroleum Corporation Limited and Bharat Petroleum Corporation Limited.

But even as the government was trying hard to recover from the devastating order, Nariman, who had argued the case in the apex court on behalf of the Oil Sector Officers Association, left quietly for a trip to Frankfurt and Paris, doing what he does best -- lecturing the international community of lawyers.

Nariman's contention (and that of former law minister and jurist Shanti Bhushan who was the counsel for the Centre for Public Interest Litigation) was simple: the government could not have overridden a parliamentary legislation creating the two oil companies in 1974 after acquiring assets of companies like Burmah Shell, Caltex and Esso Standard.

While the point is debatable -- critics like Divestment Minister Arun Shourie find it downright illogical -- the institution that mattered the most could find no fault with the legality of his arguments.

Nariman's friends say he fought the case not because he is against divestment per se, but because he firmly believed that the government was rushing through the sale process and not giving due importance to the legal position.

Nariman's eye for details is evident from the resume his office has kept ready. There are two options to choose from -- one, a "biographical sketch" consisting of two pages and the other, a more detailed document of seven pages giving exhaustive information about the jurist's illustrious career.

He was born in Rangoon (then British India) and trekked out overland from Burma with his parents during the 1942 war. After passing out from Government Law College in Mumbai, Nariman became the additional solicitor-general when he was 43. He was reappointed after completing his three-year term in May 1975, but resigned from that post, a day after Mrs Gandhi declared Emergency.

The recognitions, however, came in quick succession: he has been the president of the Bar Association of India since 1991, vice-chairman of the International Court of Arbitration of the International Chamber of Commerce, Paris since 1989, and a member of the Court of the London Court of Arbitration since 1988.

He is currently the chairman of the International Council for Commercial Arbitration from May 2002 (he was the first Indian to have become the president of the council for eight long years from 1994 to 2002).

Nariman was awarded the Padma Bhushan in January 1991 and was nominated to the Rajya Sabha by the President in 1999. But the one recognition that is closest to his heart is the citation he got after standing first in the Advocate's Examination in 1950.

As chairman of the sub-group (of the Group on Telecom and Convergence), he was the one who recommended that a super regulator be created to supersede the Telecom Regulatory Authority of India.

His resignation from the additional solicitor general's post after the Emergency was not the only time Nariman protested against what he perceived to be government excesses. He returned the Gujarat government's brief in the Narmada case following the attack on Christians in Dangs.

He also publicly wanted Attorney-General Soli Sorabjee (the man he fought against in the oil PSU disinvestment case) to resign in order to give a jolt to the Narendra Modi government. "If I were the A-G, I would have resigned," he said.

Nariman's friends say behind this apparent anger against the establishment lies a brilliant mind with a fine sense of humour. Talking about the large number of pending cases, he had once criticised the Indian judicial system as a "judgement factory suffering from a case-law diarrhoea."

Or sample this one where he talks about himself: there is an old law teacher who owns an old 1938 Morris car. As he drives at 20 miles an hour, one can read the sticker at the back of his car, which says, "This car is driven by a teacher. Please overtake me as all my students have."

The ultimate tribute to Nariman's legal genius came from one of his teachers who had once said, "People like Nariman have reached the top of the profession not because we taught them but, in the process of teaching them we learnt more than we taught." The teacher was Nani Palkhiwala.

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