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This article is written by Ms. Somya Jain, from the Vivekananda Institute of Professional Studies. This article enshrines the tireless efforts of the legal doyen Justice R.F Nariman and his multifaceted contribution towards the legal domain. 

Introduction

Justice Rohinton Fali Nariman, who is well known for his multifaceted contribution towards society, recently bid adieu to his tenure as a judge in the Supreme Court. Through the myriad felicitations by the members of the bar and the bench, his magnificent journey as a judge can be seen as one of the admirable journeys of all times. The stellar career of the Hon’ble judge embarked an end to the stereotypical opinions prevailing in society. Upholding the rich legacy of Justice Fali Nariman, Justice R. F. Nariman established his personal legacy by averting the deep-rooted stigmas attached to the traditional jurisprudence and initiated the much-needed affirmative regime. 

The persona that Justice Nariman upheld was justified through the words of the Chief justice of India N V Ramana, “We are losing one of the lions that guarded the judicial institution and one of the strong pillars of the contemporary judicial system.” Being the fifth senior lawyer to be elevated from the bar to the bench, the rhetoric verdicts delivered by the judge brought nothing but glory to the institution. Being an erudite constitutionalist throughout his tenure, his contribution to the evolving legal domain will be commemorated by the human fraternity. 

The path-breaking career of the legal doyen

Under the looming apprehensions of people regarding the illustrious career of his father, Justice Fali Nariman, and his undying legacy, Justice R.F Nariman aimed to be distinctive, holding an individual identity distinguished from that of his father. He started his career by enrolling himself in the Bar in the year 1979 after obtaining his L.L.M. degree from Harvard Law School and a brief stint in New York at a Maritime Law firm for a year. 

Justice Fali Nariman’s stature was enlightened by his obsessive attention to the minutest details and his remarkable grasp of the complicated facts and the underlying legal issues. This quality elevated him to the designation of a senior advocate of the Supreme Court in 1993 when he was merely 37 years of age. Intriguingly, the then Chief Justice of India, M.N Venkatachaliah, amended the rules and reduced the minimum age for appointment as a senior advocate of the Supreme Court from 45 years to designate Justice Nariman as a senior advocate. Having expertise in cases related to Comparative Constitutional Law and Civil Law, his career underwent diversified legal ambit paving way for a wholesome achievement.

His tremendous contribution in the legal field was colossal which resulted in his appointment as a Solicitor General of India in the year 2011 on the recommendation of the late G.E Vahanvati, the then Attorney General of India. However, after 18 months, Justice Nariman resigned his post as a Solicitor General due to the demands of the then Union Law Minister, Ashwani Kumar. 

Considering the judicial aptitude and the fierce independence of the legal doyen, Justice Nariman was elevated as a judge of the Supreme Court of India on 7th July 2014. During his tenure, Justice Nariman was also appointed as Chairman of the Supreme Court Legal Services Committee. He was among the 5 members who were directly appointed from the Bar to be a judge of the Supreme Court. In his 7 years of tenure, he disposed of around 13,500 cases and delivered several notable judgments that had a profound effect on the development of law.

Rich legacy enshrined under multifarious judgments

The impeccable judgments delivered by him would be cherished and grappled by future generations for decades to come. He left behind a legacy of a trove of remarkable verdicts which marked an end to the colonial era. His contribution to some landmark verdicts will remain etched in the history of the country’s evolving jurisprudence and democracy. Sketching a brief about his contribution, some of his landmark judgments are enshrined below.

Striking down Section 66A of the IT Act

One of the earliest judgments that cemented his reputation as a judge among the masses was the case of Shreya Singhal v. Union of India (2015). A Division Bench comprising Justice R. F. Nariman and Justice Chelameswar struck down Section 66A of the Information Technology Act, 2000. The provision empowered the police to arrest a person for transmitting ‘offensive material’ over electronic media and social networking sites. The Court, while striking down the provision, curbed the two dimensions of gross injustice caused under the said provision. Firstly, it restrains the exercise of overreaching power of the law enforcement authorities as this Section uses terms like ‘grossly offensive’, ‘inconvenience’ or ‘annoying’ which are subjective in nature. It creates a lacuna in the provision as the interpretation remains vague due to the discretionary powers of the police. The Court held that the provision cannot be interpreted precisely and thereby established that a legislature that swears by the principles of constitutional democracy cannot create a law that can be manifested arbitrarily.

Secondly, the provision was declared unconstitutional as it violated Article 19(1)(a) of the Constitution of India that guarantees freedom of speech and expression to the citizens of India. In the words of Justice Nariman, “the provision arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right. The provision clearly affects the fundamental right of free speech and expression and thus is against the constitutionality of the country.”

Right to privacy : a fundamental right

In a landmark judgment of K.S. Puttaswamy v. Union of India (2017), a nine-judge bench including Justice Nariman, enlarged the ambit of right to life and personal liberty, being one of the fundamental rights. The Supreme Court unanimously ruled that the right to privacy forms an intrinsic part of the fundamental right granted to the citizens of India. The Court held that the “right to privacy is an intrinsic part of Right to Life and Personal Liberty under Article 21 and entire Part III of the Constitution.” Right to privacy was interpreted by the Court to include within its scope ‘liberty’ and ‘dignity’ which forms the foundation of human existence. These terms were said to form a part of ‘life’ and ‘personal liberty’ and thereby, it was stated that the right to privacy was part and parcel of the right to life and personal liberty. 

Decriminalising Section 377 of the Indian Penal Code

One of the most forward-looking judgments that brought about the much-awaited change in society was the decriminalisation of Section 377 of the Indian Penal Code. In the case of Navtej Singh Johar v. Union of India (2018), Justice Nariman delivered a separate judgment that was concurred by three other learned judges. Section 377 that legitimised penalising consensual sex between two consenting adults belonging to same-sex, was decriminalised on the ground that it was manifestly arbitrary and discriminatory in nature and was also violative of Articles 14, 15 and 21. In the observation made by Justice Nariman, he stated that persons who are homosexuals have a fundamental right to live with dignity. They are further entitled to the protection of equal laws and are entitled to be treated in society as human beings without any stigma being attached to any of them. The Bench overruled the judgment of a 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation (2014)

The Sabarimala judgment

In another landmark verdict in the case of Indian Young Lawyers Association v. The State of Kerala (2018), a 5-judge Constitution Bench, by a majority of 4:1, held that denying entry to female counterparts between the age of 10 to 50 years in the Sabarimala temple is unconstitutional as it violates Article 25 of the Indian Constitution and discriminates against women based on gender alone. Justice Nariman delivered a separate concurring judgment stating that the customs and usages prohibited women between the ages of 10 to 50 years from entering the premises of the Sabarimala temple on the ground of a physiological or biological function which is common to all women between those ages. Further, Justice Nariman also held such practice violative of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 along with Article 25. 

Triple Talaq being made unconstitutional

In a monumental judgment, the Supreme Court in the case of Shayara Bano v. Union of India (2017), by 2:3 majority, held that the practice of triple talaq prevalent among the Muslim community is void, illegal and unconstitutional as it violates Article 14 and 15 of the Constitution. Justice Nariman discussed that gender equality must outweigh religious freedom. Further, he also articulated the doctrine of “manifest arbitrariness” as a facet of Article 14. Justice Nariman examined the Muslim Personal Law (Shariat) Application Act, 1937 in regards to it being violative of the fundamental right. He held that the concept of Triple Talaq was instant and irrevocable thereby denying any scope of possible reconciliation between the concerned parties. Therefore, this form of talaq is said to be manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.

The judgment on adultery

In a notable judgment in the case of Joseph Shine v. Union of India (2019), the Court held Section 497 of the Indian Penal Code and Section 198(2) of the Code of Criminal Procedure unconstitutional and violative of Article 14, 15(1) and 21 of the Constitution. Justice Nariman sought to give a concurring judgment on the matter at hand. Section 497 is a denial of substantive equality as it perpetuates the subordinates status ascribed to women in marriage and society. The provision is said to be blatantly discriminatory on the sole ground of sex. The sanctity of the marriage is destroyed when a husband indulges in sexual intercourse with another woman. Further, a woman is treated as a chattel and thereby, if a husband consents or connives his wife to indulge in sexual intercourse with any other person, the offence was not committed. Thus, it is stated by Justice Nariman that Section 497 is restrictive of the agency, autonomy and dignity of a wife, thereby upholding the provision as unconstitutional. 

Reservations in promotions for Scheduled Caste and Scheduled Tribe communities

In the case of Jarnail Singh v. Lachhmi Narain Gupta (2018), Justice Nariman along with other 4 learned judges upheld that the concept of creamy layer, 50 percent ceiling limit and the quantifiable data indicating the compelling reasons will be applicable while granting reservations to Scheduled Castes and Scheduled Tribes in promotions. Contrary to the case of Indra Sawhney v. Union of India (1992), the Court held that though the State is not bound to make reservations for SCs/STs in matters of promotions if at all it is made then the State is bound to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335 of the Constitution. Therefore, the Court found no ground to revisit the case of M. Nagaraj v. Union of India (2006) which was challenged in the present case. It is further clarified by the Court that even though the State finds any compelling reasons for granting reservations for the same, the State will have to ensure that the reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.

The infamous Amazon- Future dispute

In a recent case of Amazon.com NV Investment Holdings LLC v. Future Retail Limited (2021), the 2-judge bench comprising of Justice Nariman held that the interim award passed in favour of Amazon by the Emergency Arbitrator appointed under the Arbitration Rules of the Singapore International Arbitration Centre is enforceable under the Indian Arbitration Act. The Court further declared that full party autonomy is granted under the Indian Arbitration Act to have a dispute decided in accordance with institutional rules which can include Emergency Arbitrators delivering interim orders.

Other notable judgments

Justice Nariman ruled other monumental judgments which hold cosmic value in the legal arena. Some of the judgments include the case of Paramvir Singh Saini v. Baljit Singh and others (2021), under which a three-judge bench headed by Justice Nariman made it mandatory to install CCTV cameras in the offices of central agencies including all Police Stations, Office of the Narcotics Bureau, CBI, Enforcement of Directorate, National Investigation Agency, SFIO and any other central agency. This step was undertaken in furtherance of the fundamental right incorporated under Article 21 and keeping a check on the rising numbers of custodial deaths. 

In another case of Indira Jaisingh v. Supreme Court of India (2017), a three-judge bench comprising Justice Nariman established various guidelines for the system of designation of Senior Advocates in the Supreme Court as well as all the High Courts of India. Such guidelines were brought about to ensure fairness, objectivity and transparency with full regard given to merit and capability. 

In yet another landmark case of Arjun Panditrao Khotkar v. Kailash Kushanrao (2020), Justice Nariman in the three-judge bench upheld that electronic records are admissible under the ambit of Section 65B of the Indian Evidence Act. The Court further held that the admissibility is subject to the prerequisite of Section 65B(4) and a certificate is essential if an original document is produced. 

Controversial overview of his tenure

The net of judgments interwoven by Justice Nariman showcases his far-reaching judicial perspective and calibre. However, his tenure was also subjected to some controversies on which the author will now shed light. 

The case of Assam Sanmilita Mahasangha v. Union of India (2014) was considered as ‘one blot’ to the otherwise illustrative career of Justice Nariman. This case was the reason that the National Register of Citizens process was initiated in Assam, even though the matter of constitutional validity of the law was referred to a larger bench. According to the judgment, the migrants of Indian origin who were settled in India before 25 March 1971 were the ones who were qualified to obtain citizenship in India. Further, this would be ensured after examining the paperwork which was either lost or destroyed. Through this disruptive decision, it was the poor and the illiterate segment of society, living in areas where floods and natural calamities were seen on a perpetual basis, who would suffer at the hands of the concerned authorities. This judgment was condemned by large masses and remained inconsistent with the interest of society.

Justice Nariman was appointed as a member of the bench constituted to address the case of sexual harassment of a female employee of the Supreme Court by the former Chief Justice of India Ranjan Gogoi. Justice Nariman concurred with the judgment of Justice Arun K. Misra who directed to further inquire into the said matter. However, the report was never published in the public domain. Further, it was recently notified that the complainant along with 11 members were potential targets of pegasus spyware which left many questions unanswered. Further, in another incident, two court masters were found tampering with the order delivered by Justice Nariman. The two court masters were sacked in the year 2019 by CJI Ranjan Gogoi before receiving a pardon this year. 

Conclusion

Justice Nariman is rightly considered as the legal luminary and a gem of the Supreme Court due to his legal acumen, constitutional insight and prolific outlook. Justice Nariman’s tireless contribution in delivering top-notch judgments inculcated a sense of blistering pace and intellect. It is the fortune of the Indian Judiciary to be blessed with a man of his stature to hold the reins of the Supreme Court. Upholding a distinct legacy, Justice Nariman has been one of the most inspiring figures to future generations, in the legal realm, due to his sheer excellence and persistent efforts to uphold the legal principles established within the Indian legal system. 

References

  1. Justice Rohinton Fali Nariman retires today: A look back at the judge’s legacy (firstpost.com)
  2. The Verdictum: Justice Rohinton Fali Nariman (barandbench.com)
  3. A Multifaceted Expert — Justice Rohinton Fali Nariman | SCC Blog (scconline.com)
  4. How Justice Rohinton F Nariman Will be Remembered (moneylife.in)
  5. Justice Rohinton Nariman’s Legacy: ‘Whence Comes Such Another?’ (bloombergquint.com)
  6. Supreme Court Justice Rohinton Fali Nariman retires: A look at his landmark judgements (republicworld.com)
  7. Justice Rohinton Nariman exits, batted for free speech, privacy | India News, The Indian Express
  8. Justice RF Nariman: Contributions in Development of Law (latestlaws.com)

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