Read Time: 06 minutes

Synopsis

In a recent podcast hosted by the Bombay Bar Association, retired Supreme Court Justice Rohinton Fali Nariman, also an ordained Parsi priest, highlighted the supremacy of the Constitution over personal religious beliefs. The podcast, led by Senior Advocate Fredun DeVitre, explored various facets of legal practice and judicial responsibility.

Justice Nariman firmly stated that when personal religious beliefs conflict with the Constitution, the latter must prevail. He underscored the importance of adhering to the oath to the Constitution and laws, stating, “if the constitution says something which conflicts with your religious beliefs, the constitution prevails.” He highlighted the necessity for judges to remain true to their oath and said, “How the constitution views a particular moral precept may be difficult from what your religion tells you about a moral precept but you must be true to your oath first.”

The dialogue also covered the seminal concept of the basic structure doctrine, rooted in the landmark Keshavananda Bharati case, delivered in 1973, highlighting the inherent limitations on amending powers to preserve democratic values and constitutional essence. Nariman recounted the historical context following the 1973 verdict, touching upon the political aftermath and the controversial 39th Amendment Act. Calling the said amendment “horrendous”, he pointed out that it was rushed by Mrs. Gandhi (Indira Gandhi, the then Prime Minister) after her legal setback.

Justice Nariman pointed out that despite the procedural correctness of the 39th Amendment Act, it was critiqued for infringing on the Constitution's basic structure stating, “it actually damaged the basic structure in various ways.” He highlighted how this move, intended to position Mrs. Gandhi above the law, blatantly challenged the basic structure and that it was judges who previously opposed the basic structure doctrine in the Keshavananda Bharati case, who, adhering to the majority's decision, recognised its violation and acted to protect the constitutional framework.

During the discussion, DeVitre questioned Nariman about his career transition from Senior Advocate, often opposing the government, to serving as the Solicitor General of India. Nariman described these roles as "pleasure posts," meaning they are held as long as the government has confidence in the lawyer. He detailed the inherent challenges and expectations associated with such positions, stressing that the government can replace the Solicitor General if it loses confidence in them.

Moreover, Nariman emphasised the paramount duty of law officers to the court, superseding their duty to clients. He reflected on his time as Solicitor General, recalling instances where he openly communicated the government's stance to the court while personally holding a different view. This transparency and dedication to the truth, according to Nariman, were often appreciated by the judiciary.

The former judge concluded by stressing the importance of upholding the rule of law, which he believes is best achieved by prioritising the court's interests over those of clients. Nariman's insights into the responsibilities of legal practitioners and the precedence of constitutional law over personal beliefs contribute significantly to the ongoing discussion about the role of personal ethics in legal practice.

Source: Bombay Bar Association Podcast