Book summary “Before Memory Fades”: summary

Introduction

A distinguished jurist reflects on a lifetime in the Indian legal profession, detailing landmark constitutional battles, historical court cases, and the moral imperatives of justice and advocacy.

You enter the legal profession hoping to master the law, yet you quickly realize that technical skill alone cannot protect democracy from political pressure. You face the constant challenge of maintaining ethical integrity while representing difficult clients within an overburdened court system. Fali S. Nariman shares his journey from a Parsi refugee fleeing Burma during the Second World War to one of India's preeminent jurists. The book maps out the realities of courtroom advocacy, landmark constitutional battles, and the profound moral choices that define a career in law. You will discover how historical crises tested the judiciary and how fundamental legal principles shape modern governance.

• What makes a great lawyer in a complex legal system?
• How do chambers and mentors shape professional ethics?
• Can the judiciary successfully guard democracy during national emergencies?

1. Early Life and Entry into Law

Parsi Zoroastrian ancestry traces back to Persian roots and the mythical hero Sãm from the Shahnameh. Due to a family protest against polygamy before the Indian Succession Act of 1865, maternal ancestors sailed to Rangoon. They ran the postal service for King Theebaw until British forces deposed him in 1885.

Facing early hardships builds resilience, while choosing the legal profession opens doors to profound mentorship and tradition.

When King Theebaw's favorite queen fell ill, he ordered Buddhist monks to pray for her recovery. She died, and the king razed the monastery to the ground.

During the sudden Japanese invasion of Burma in 1941, the family undertook a perilous 21-day overland trek to reach safety in India. You faced a journey divided into three segments:

• 7 days spent traveling by bullock-cart through forests;
• 7 days spent traveling by country-boat along the Upper Chindwin River;
• 7 days spent traveling on foot and by doolies over mountainous terrain.

Out of 400 trained elephants owned by the Bombay Burmah Trading Corporation, a lonely trained animal went berserk in the mountains. A young Englishman successfully called out in Burmese to turn the beast around just thirty yards away.

Attending Bishop Cotton School in Simla from 1942 to 1944 shaped your character. Canon Sinker notoriously wished his graduating students a life full of difficulties.

At St. Xavier's College in Bombay, Professor Father Fell publicly mocked your lack of French knowledge in a class of 400 boys and girls. This humbling experience cured you of showing off. Professors like Father Heras maintained that Mohenjo-daro was Dravidian in origin and deciphered its script.

Declining the ICS exam due to financial constraints, you entered the Government Law College in Bombay. Sir Dinshaw Mulla once contemplated poetry and wrote to Alfred Tennyson, who frankly advised him to try the law instead.

2. Chambers, Mentors, and Courtroom Realities

Just as a racehorse's stable establishes its breed and ancestry, a lawyer's chamber determines the cultural tradition, hierarchy, and professional upbringing they receive. You enter the law with your head bowed because you know very little.

Professional lineage and chambers shape a lawyer's upbringing, teaching humility, observation by osmosis, and the avoidance of perilous litigation.

You secure entry into prestigious legal spaces through unexpected connections. Without godfathers in Bombay, you work as a trainee through a chain of connections starting with A. D. Shroff and solicitor Dinsha Daji before entering Sir Jamshedji Kanga's chambers. From 1950 to 1951, you work as an apprentice with Kaikobad Lala.

Sir Jamshedji Kanga's chamber produces many distinguished figures, including Homi Seervai, Nani Palkhivala, Soli Sorabji, and several future chief justices and judges. Despite serving as advocate general of Bombay from 1922 to 1935 and completing 60 years at the Bar, Kanga remains exceptionally humble, answers letters for juniors, and recites the Shahnameh of Ferdowsi by rote.

Young lawyers learn the intricacies of legal practice primarily through osmosis by observing and listening to professional giants. Formal education leaves you with colossal ignorance. You must acquire true professional competence by working closely with seniors, attending conferences, and observing court proceedings.

Initial incompetence vanishes slowly as you master practical details. You experience this when you cannot find a case on the kutcha board. You must observe notices and court boards carefully instead of merely looking at them.

Senior attorneys and solicitors frequently mark minimal fees for complex briefs, leaving junior lawyers to learn through hardship. Solicitor Burjorji Aibara frequently briefs young lawyers on complex cases while marking nominal fees of a single gold mohur, equivalent to 15 rupees, for consent decrees that require multiple court appearances. Other nominal fees include:

• 8 gold mohurs for drafting a written statement;
• 2 gold mohurs for a conference or standard consent decree;
• 1 gold mohur for a complimentary brief fee.

Judicial outcomes can vary widely depending on the tribunal or lay delegates, demonstrating that legal verdicts do not always align with objective fairness. In a Parsi matrimonial case, lay delegates reject a judge's recommendation to grant a divorce and force a reluctant wife back to her husband. She returns months later severely injured.

Defamation actions are a dangerous luxury that you should avoid because they prolong scandals and bring regret. A solicitor files a defamation suit against a lampooning journalist named Homi Daji over a scurrilous article, leading to a four-week public spectacle before the suit is withdrawn with a half-hearted apology.

• Dissuade clients from filing civil or criminal defamation actions due to the high risk of protracted public scandal.
• Recuse yourself as a judge from any subsequent case involving a party against whom you previously decided after hearing evidence.

3. Advocacy, Ethics, and Regional Trials

Rigorous civil trials and considerate judges train young advocates, whereas lawyer strikes and ethical lapses erode public trust.

Judges who are considerate and supportive toward junior advocates help build their confidence, refine their skills, and provide opportunities for them to earn initial fees. Justice Coyajee would ask seniors appearing solo in heavy motions why they were alone, prompting solicitors to brief a junior standing in court. Justice Kantilal T. Desai defended young advocates against senior attacks by defining true advocacy as making the complicated simple.

Conducting original civil trials provides invaluable professional training through strict pleadings, witness examinations, and cross-examinations, unlike the relaxed rules of writ petitions. Commercial causes can be resolved with remarkable speed and simplicity when judges rely on targeted questioning rather than lengthy written statements. Sir Norman MacLeod disposed of commercial cases rapidly between 1919 and 1926 by asking just two questions about market direction and party status during the First World War.

Historical accounts commissioned by courts can face severe impasses when independent authors refuse to censor critical postscripts regarding judicial memorial actions. When P. B. Vachha wrote his book titled Famous Judges, Lawyers and Cases of Bombay for the 1962 centenary of the Bombay High Court, he refused to remove his postscript criticizing Chief Justice Chagla for unveiling a memorial tablet for Bal Gangadhar Tilak.

Practicing across diverse regional courts with unique historical traditions, such as Portuguese civil law in Goa or Mofussil pomp in Pune, broadens your expertise. You might practice under hybrid Portuguese civil law before Dr Justice G. F. Couto after the 1961 liberation of Goa, Daman and Diu, or appear in a district court where the presiding judge combines strict trials with literary snuff-box anecdotes.

The legal profession suffers a decline in public esteem when lawyers participate in work strikes or fail to defend unpopular citizens, whereas standing up for rights restores public trust. India maintained a lawyer-to-people ratio of 1:1800 compared to Great Britain's 1:300 during these eras. When Ram Jethmalani was hunted by authorities during the 1975 to 1977 period of the Internal Emergency, 200 lawyers courageously signed as his counsel in the Bombay High Court.

• Rediscover and reaffirm the profession's moral foundation.
• Inculcate ethical principles in the minds of young lawyers through positive example.
• Promote morally responsible and responsive lawyering.

4. Techniques of Master Advocates

Supreme courtroom performance requires deep contemplation, capsule arguments, strict time management, and absolute emotional control.

C. K. Daphtary advised you that deep contemplation of the case matters far more than just surface-level reading of the brief. Master advocates like Bhulabhai Desai spent only half an hour each evening conferring over a massive 2,000-page brief, yet delivered a masterly summary of facts and law without a single note the next day. Parkinson's law applies powerfully here, where less work breeds less inclination to think and destroys your incentive to sharpen mental faculties.

Sir Dinshaw Mulla warned against the sporting-chap syndrome where you file a suit despite having no valid legal case. Solicitor Manekji Pochkhanawalla and his client persuaded Sir Dinshaw Mulla to file a suit after asking if the client was a sporting chap; the suit was dismissed with costs and the client lost 30,000 rupees. Making deliberately incorrect statements in court risks getting you mentally blackballed by the judge, since false assertions destroy your credibility just like an Irish clock that strikes thirteen.

You must never be too cocksure of winning a case because unforeseen personal tragedies or accidents can alter judicial outcomes. The author argued an appeal under Chief Justice H. K. Chainani that seemed certain to succeed, but a week later the Chief Justice was knocked down by a car and died, leading to a rehearing before a new bench that ruled against the author.

When presenting weak arguments in an appeal, Wilfred Greene advised that you should follow specific steps:

• Argue the worse of two bad points first and put your best work into it.
• Allow the court to drive you into a corner where you must admit defeat.
• State that you have another point to argue but are not quite sure how to put it.
• Wait for an old gentleman on the bench to interrupt and suggest the right way to put the argument.
• Lay your papers on the desk, raise your eyes to the ceiling, and express awestruck agreement with the judge's formulation.

You must control your temper when provoked by a judge or opponent. Judge Ruth Ginsburg avoided calling a judge sexist during a gender discrimination case by calmly responding with a witty remark instead of losing her temper.

When presenting cases within strict time limits, you must apply distinct rules:

• Put your case in capsule form to fit within preset time constraints.
• Say only what is strictly relevant when time is limited.
• Sit down immediately when your allotted time expires.

US federal courts allow 10 to 15 minutes for regular appeals, while the US Supreme Court permits 30 minutes for oral arguments. Archibald Cox was cut off mid-sentence by Chief Justice Warren Burger for exceeding this thirty-minute time limit during the reverse discrimination case of Regents of University of California vs Bakke.

Jury trials in India were abolished following a high-profile criminal case where public emotion overrode evidence. In April 1959, Commander K. M. Nanavati shot his wife's lover Prem Ahuja, and despite an impassioned plea by Karl Khandalavala resulting in an 8:1 jury verdict of not guilty of murder, the Bombay High Court sentenced him to life imprisonment and abolished the jury system.

5. Defending the Constitution and Basic Structure

Constitutional jurisprudence evolved through landmark battles that established the basic structure doctrine to protect essential democratic features.

In the 1967 Golaknath case, an 11-judge bench ruled by a narrow 6:5 majority under Chief Justice Subba Rao that fundamental rights could not be abrogated or amended because a constitutional amendment qualified as a law under Article 13(2), which voided laws contravening Part III. Fali S. Nariman appeared as a junior counsel assisting senior counsel A.K. Sen and N.A. Palkhivala for a group of petitioners challenging agrarian reforms and property rights restrictions.

Nani Palkhivala argued that because Article 368 stated the constitution shall stand amended, it required the constitution to remain intact after an amendment, thereby implying limitations on wholesale repeals. Opposing counsel Kanhaiya Lal Misra dismissed this argument by asserting that plain English could not be subverted. Kanhaiya Lal Misra famously poked fun at Palkhivala's emphasis during the Golaknath hearings by asking whether the clause should have stated the constitution shall sit amended.

In the 1973 Kesavananda Bharati case, a 13-judge bench overruled Golaknath by a 7:6 majority, holding that while Parliament could amend any part of the Constitution, it could not destroy or alter its basic features. The doctrine evolved directly from the concerns raised earlier by Justice Mudholkar regarding whether foundational features were meant to endure or remain subordinate to ordinary amendments.

Following Prime Minister Indira Gandhi's election defeat in the Allahabad High Court, Parliament rushed through the Thirty-ninth Amendment Act of 1975 to place the prime minister's election beyond judicial review. The Supreme Court resisted this attempt in Indira Gandhi vs Raj Narain, ruling that free, fair elections and judicial review formed part of the unamendable basic structure. Indira Gandhi lost her election petition in June 1975 in the Allahabad High Court, triggering a rapid constitutional amendment designed to make her election permanently valid.

Following provisions in the Forty-second Amendment Act that attempted to bar any court from questioning constitutional amendments on any ground, the Supreme Court in Minerva Mills (1980) invalidated the exclusion clause, declaring that barring judicial review violated the basic framework. The Constitution Bench followed the ratio established in the Fundamental Rights case to strike down the ouster of jurisdiction clause.

Although critics argue that the judiciary turned into constitutional governors by inventing unwritten limitations, Parliament implicitly and explicitly recognized the doctrine when enacting the Forty-fourth Amendment, which permanently protected Article 21 rights against suspension even during an Emergency. An attempt by the Janata Government via the Forty-fifth Amendment Bill to introduce a referendum for altering basic features failed because the Opposition Congress Party refused to vote for it.

6. The Crucible of the Internal Emergency

The declaration of the 1975 Internal Emergency tested the integrity of the legal system, leading to courageous resignations and tragic judicial compromises.

Political developments and personal connections played a direct role in Fali Nariman's appointment as additional solicitor general of India on 1 May 1972. Earlier, you would find that Nariman declined an offer to become a judge of the Bombay High Court at age 38 because the monthly stipend of Rs. 3,500 was insufficient to support his family and dependent grandmother. After H.R. Gokhale became the union law minister, he revived the post and appointed Nariman.

As a law officer, you maintained fees stipulated under the Conduct of Business Rules. Each special leave petition fetched Rs. 1,040, while final hearings of appeals and writ petitions paid Rs. 1,680 per day.

Supreme court battles during this era shaped constitutional law. In the 1973 Newsprint case, Nariman defended the government's import policy before a five-judge bench, but the majority struck it down for suppressing freedom of speech and expression under Article 19(1)(a). Justice A.N. Ray described press freedom as the Ark of the Covenant, though Nariman notes this proved to be mere posturing when the same judge later upheld press censorship during the Emergency.

During the nine-judge bench hearing in the St. Xavier's College case in 1975, Motilal Setalvad dismantled Nariman's arguments on minority educational rights under Article 30. Setalvad asked the nine judges if they had any doubts left, and when none spoke, demonstrated the legal maxim Roma locuta est, Causa finita est. Setalvad passed away at age 89.

Parliamentarian Piloo Mody served in the Lok Sabha from 1967 to 1977 and the Rajya Sabha from 1978 to 1983. Mody acted as a grand leveller by cutting through obsequiousness with humor. Piloo Mody and Indira Gandhi exchanged notes in Parliament playfully signing them with their respective initials 'P.M.' and 'I.G.'.

Judicial independence requires the capacity to resist pressures and having nothing to hope for or fear in judicial functions. Sir Harry Gibbs, who served as chief justice of Australia from 1981 to 1987, demonstrated this independence when Nariman was elected president of LAWASIA in 1985. Gibbs was unexpectedly called upon to propose a toast to Imelda Marcos at a LAWASIA function and deftly steered the toast to LAWASIA instead.

The Internal Emergency of June 1975 was a hastily devised contingency measure engineered by Prime Minister Indira Gandhi's inner circle to bypass judicial consequences. Justice Jagmohan Lal Sinha pronounced judgment against Indira Gandhi on 12 June 1975, finding her guilty of corrupt practices. Following this, preparations for mass arrests and a presidential proclamation were swiftly arranged before the Supreme Court could issue an absolute stay.

President Fakhruddin Ali Ahmed signed the Proclamation of Emergency on the night of 25 June 1975 before the cabinet formally met and approved it the next morning.

7. Aftermath of the Emergency and International Law

The abuses of emergency rule spurred post-emergency constitutional safeguards, international human rights missions, and reflections on the complicity of the intelligentsia.

Resigning from a high government post in protest against authoritarian measures creates a psychological sense of insecurity once state-provided police protection is withdrawn. After Nariman resigned as additional solicitor general following the June 1975 Emergency, his plain-clothes police guard was withdrawn after two or three weeks, leaving him feeling unsafe to go out alone.

When broad and repressive detention laws are enacted, local officials tend to exercise them irresponsibly and oppressively. A law student in Visakhapatnam suggested postponing a procession supporting the Prime Minister's 20-Point Programme to a Saturday, leading a district magistrate to issue a MISA detention order calling him a danger to state security.

The Supreme Court's majority decision in ADM Jabalpur v. Shukla effectively denied habeas corpus and declared courts powerless against arbitrary executive detentions during an emergency. In April 1976, the Supreme Court handed down the ADM Jabalpur decision when Attorney General Niren De conceded before Justice H.R. Khanna that even if a police officer killed a citizen out of personal enmity during an emergency, no judicial remedy would exist.

Justice H.R. Khanna stood as the lone courageous dissenter in the Habeas Corpus case, sacrificing his rightful appointment as Chief Justice of India. After Justice Khanna's lone dissent in ADM Jabalpur, the government bypassed his seniority to appoint M.H. Beg as Chief Justice of India in January 1977, prompting Khanna to resign before his 28 January 1977 retirement date.

Judges who rule against the executive during an authoritarian emergency often face punitive transfers or denial of promotions. Justice S.I. Rangarajan, who allowed Kuldip Nayar's habeas corpus petition, was transferred to the High Court of Assam, while Justice R.N. Aggarwal's term as an additional judge was not extended, as revealed on 12 September 2006 by Chief Justice Y.K. Sabharwal.

The abuses of the 1975 Emergency led to subsequent constitutional amendments designed to prevent executive overreach and protect fundamental rights from suspension. The Constitution (Forty-fourth Amendment) Act of 1978 added safeguards allowing Parliament to revoke emergencies under Article 352 (3) and barring the suspension of the right to life and liberty.

Commissions established by outgoing governments can be summarily discarded when a new political administration takes power. After the Janata Party lost power in 1979, the returning government under Indira Gandhi thanked Justice Goswami and scrapped the Second Press Commission entirely in favor of a new one under Justice K.K. Mathew.

During periods of bad governance and tyranny, the intelligentsia tends to be complicit by providing rationalizations for oppression. Australian High Commissioner Bruce Grant noted that Indira Gandhi expressed shock and surprise at the total lack of resistance and reaction among the Indian public and intelligentsia during the Emergency.

International fact-finding missions can effectively expose systemic biases and structural flaws in the administration of capital punishment. Nariman headed an International Commission of Jurists mission in January 1996 visiting Washington DC, Pennsylvania, Georgia, and Texas to investigate capital punishment practices.

The ICJ report published in 1996 urged you to follow specific guidelines:

• Control and channel prosecutorial discretion
• Free jury selection and determination from racial and class bias
• Ensure meaningful and adequate legal representation for capital crimes
• Provide judicial processes to combat effect-based racial discrimination

8. The Bhopal Disaster and Tort Litigation

Industrial catastrophes expose the limits of traditional tort litigation, highlighting the toxicity of anger and the necessity of disaster funds.

The civil litigation surrounding the Bhopal gas disaster progressed through several stages across different Indian courts, culminating in a Supreme Court-brokered settlement. The Union of India filed a suit on behalf of claimants under the Bhopal Gas Leak Disaster Act of 1985. The Bhopal District Judge ordered interim compensation of Rs. 3,500 million, which the Madhya Pradesh High Court modified to Rs. 2,500 million. Ultimately, a Constitution Bench of the Supreme Court facilitated a final settlement of US $470 million.

In the suit filed in the District Court of Bhopal, Judge M. W. Deo ordered Union Carbide Corporation to pay Rs. 3,500 million as interim compensation without evidence or document disclosure, an order later modified by Justice S. K. Sheth.

Toxic disasters generate a condition known as the toxicity of anger, which obstructs early settlements and distorts the subsequent adjudicatory process. Professor Upendra Baxi published an open letter in Seminar describing the Supreme Court settlement as unconscionable and condemning Nariman's defense of UCC as a grave harm to human rights protection. Legal scholars and activists severely criticized Nariman's defense of Union Carbide, arguing that it legitimized corporate malfeasance and accepted an inadequate settlement.

Establishing a permanent National Disaster Fund through government resources and industrial levies can provide immediate relief to victims of industrial accidents.

To bypass the delays of the traditional tort litigation system, you can support a permanent disaster fund financed by government resources, voluntary contributions, and compulsory levies on extrahazardous industries. This fund would compensate victims immediately based on a graded tariff without foreclosing further litigation. You should follow these essential steps in handling mass disaster claims:

• Ascertain promptly and accurately the victims, including dead, injured, and nature of injuries
• Make a complete disclosure of victim data to the party sought to be made liable
• Try and negotiate, without acrimony, an overall settlement without reference to liability

10 Key Ideas

1. Early hardships and family displacement during the 1941 Japanese invasion of Burma built resilience before the author entered the legal profession and received formative mentorship in Bombay.
2. Prestigious legal chambers shape a lawyer's upbringing through osmosis and humility, teaching young advocates to navigate practical realities while avoiding dangerous defamation suits.
3. Conducting original civil trials provides invaluable professional training, whereas lawyer strikes and ethical lapses erode public trust in the administration of justice.
4. Supreme courtroom performance requires deep contemplation, capsule arguments, strict time management, and absolute emotional control rather than reliance on weak arguments or incorrect statements.
5. Constitutional jurisprudence evolved through landmark battles that established the basic structure doctrine to protect essential democratic features like judicial review against parliamentary overreach.
6. The declaration of the 1975 Internal Emergency tested the integrity of the legal system, leading to courageous resignations and tragic judicial compromises during executive overreach.
7. The abuses of emergency rule spurred post-emergency constitutional safeguards, international human rights missions, and reflections on the complicity of the intelligentsia under authoritarian regimes.
8. Industrial catastrophes like the Bhopal gas disaster expose the limits of traditional tort litigation, highlighting the toxicity of anger and the necessity of disaster funds.
9. Judicial independence requires the capacity to resist pressures and having nothing to hope for or fear in judicial functions, as demonstrated by courageous dissenters who sacrificed promotions.
10. Maintaining ethical integrity and fulfilling professional duties remain paramount to protecting democracy and preserving public trust within an overburdened legal system.