This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the various landmark judgments given by J. RF Nariman during his tenure as a Justice in the Supreme Court. 

Introduction

Justice Rohinton Fali Nariman was part of several historic judgments over the years. He was the Solicitor General of India prior to his appointment as a Justice in the Supreme Court in 2014. He served as a Justice for over 7 years and retired on August 12, 2021. In his tenure, he dealt with over 13,565 cases. 

This article discusses some of the landmark cases that he was part of and the observations made by him in those cases.

Landmark cases

The abolition of Section 66A of the Information Technology Act, 2000

In Shreya Singhal vs. Union of India (2015), Sections 66A, Section 69 and 79(3)(b) of the Information Technology Act, 2000 (IT Act), the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, Section 118(d) of Kerala Police Act and Sections 95 and 96 of the Code of Criminal Procedure, 1973 were challenged to be unconstitutional on the grounds of violation of Article 19(1)(a) of the Constitution of India. Apart from Section 66A, all other provisions were held to be constitutional by the Court. 

Provisions of the IT Act

Punishment for sending offensive messages

Section 66A of the IT Act provided the punishments for sending offensive messages through a computer or any other communication device. The following acts were punishable under this provision:  

1. Conveying any information which is grossly offensive
2. Conveying false information, knowing it to be false for the purpose of causing injury, annoyance, insult etc to the person.
3. Any email sent for the purpose of annoying the recipient or to deceive the recipient about the origin of such a message. 

Liability of intermediary

Section 79(3)(b) of the IT Act states that if any information that is available of the platform of the intermediary is being used for the commission of unlawful acts, and the intermediary has knowledge about the same or is notified by the Central Government regarding the same, the intermediary is bound to remove or disable access to such information. If the intermediary fails to comply with this duty, the intermediary shall be liable under this provision. 

Issues and judgement

Whether Section 66A protects individuals from defamatory statements that are made online?

One of the essential ingredients for defamation is an injury to reputation. However, Section 66A of the IT Act deals with statements or information that are grossly offensive in nature. It is not necessary that a statement that is grossly offensive will harm the reputation of any individual. Thus, the scope of Section 66A does not extend to defamatory statements that are made through a computer or any other communication device.

Whether Section 66A is constitutionally valid?

Article 19(1)(a) deals with the fundamental right to freedom of speech and expression. There are 3 essential features of this right, i.e., discussion, advocacy and incitement. The freedom of speech and expression can be curtailed when a discussion or advocacy leads to incitement. However, Section 66A has the power to limit all forms of discussions or advocacy, irrespective of whether such discussions lead to incitement. There is a clear distinction between powers that can be used to limit the extent of freedom guaranteed under fundamental rights and the powers that can completely prohibit the exercise of fundamental rights. 

The Court further observed that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech. It includes both protected speech and speech that was innocent in nature. It creates offence that was vague and overbroad, and, therefore, is unconstitutional under Article 19(1)(a) of the Constitution. 

The powers under Section 66A are prohibitory in nature and thus Section 66A fails the test of freedom of speech and expression.

Whether Section 79(3)(b) is constitutionally valid?

Section 79(3)(b) deals with the liability of intermediaries in certain cases. Only if an intermediary has knowledge or has been notified by the Central Government of any information available on its platform that is being used for unlawful purposes and it fails to remove such information, the intermediary is found to be liable. Article 19(1) allows freedom of speech and expression but does not allow incitement of violence or any other unlawful acts through the exercise of the right under it. Thus, Section 79(3)(b) is a provision that complements Article 19(1) and therefore cannot be deemed as violative of the right to freedom of speech and expression.

The Assam National Register of Citizens (NRC) case

In Assam Sanmilita Mahasangha v. Union Of India (2014), the constitutional validity of Section 6A of the Citizenship Act, 1955 was challenged to be discriminatory, arbitrary and illegal. Section 6A was enacted to enforce the provisions under the Assam Accords, 1985. Under the Assam Accords, several illegal migrants were deemed to be citizens of India. 

Provisions of the Citizenship Act, 1955

Special provisions for citizenship 

Under Section 6A of the Act, any person of Indian origin who came to Assam before 1st January 1966 from Bangladesh and had ordinarily been residing in Bangladesh ever since were deemed to be Indian citizens. However, if any person is detected to be a foreigner, that person will be deemed to be a citizen of India only after 10 years from the date of such detection.

Issue and judgement

Whether Section 6A of the Citizenship Act is ultra vires to the Constitution of India?

Section 6A of the Act not only granted refugee status to illegal migrants of Bangladesh but also granted them the citizenship of India subject to some conditions. Due to this, there were constant clashes between the illegal migrants from Bangladesh and the tribal and non-tribal citizens of Assam. These clashes have time and again led to the destruction of life and property. The right to life of the original citizens of Assam was being violated because of this immense inflow of Bangladeshi migrants due to which they were facing issues w.r.t job opportunities, lands, residential spaces, etc. The Bangladeshi migrants were entering forests and were disrupting the lifestyle of the tribal communities in those areas. 

Even after considering all these points, the Court was of the opinion that the final conclusion as to this matter can only be given by a larger bench and thus, the matter was placed before the Chief Justice for constitution of an appropriate Bench for considering the matter. The final ruling in this regard is still pending. 

The constitutional validity of triple talaq

In Shayara Bano vs. Union of India (2017), the constitutional validity of triple talaq was challenged. The Petitioner herein was a victim of constant domestic violence. She was divorced by her husband in the year 2016 through talaq-e-biddat, i.e., a practice wherein a man can divorce his wife by uttering the word talaq thrice. She sought a declaration that the talaq-e-biddat pronounced by her husband is void. The Court ruled in favour of the unconstitutionality of triple talaq in a 3:2 ratio wherein Justice R.F Nariman was part of the majority ruling.

Issue and judgement

Whether talaq-e-biddat is ultra vires to the Constitution

Marriage is like a contract that can be terminated under certain special circumstances. The Prophet of Islam had declared divorce as one of the most disliked lawful things in the eye of God. He further stated that only if a divorce is accompanied by good reason, it can be justified before God.

The Court after considering the views of the Prophet observed that a marital tie is fundamental to family life in Islam and a divorce breaks this tie between a man and a woman. Triple talaq is an instant process and is irrevocable according to Islam. Therefore, no time for reconciliation is provided to the parties unlike the other forms of divorce under Islam. It could be given without any reasonable cause as well. 

Thus, this practice was termed as manifestly arbitrary by the Court while holding that a man cannot break a marital tie at his whim and fancy. An opportunity to make an attempt of reconciliation to save the marriage should be present at all times. In light of the same, triple talaq was held to be ultra vires to Article 14 of the Constitution. The recognition of triple talaq under the Muslim Personal Law (Shariat) Application Act, 1937 was also struck down.

The right to privacy is a fundamental right

In KS Puttaswamy vs. Union of India (2017), the collection of data for the Aadhar card system was challenged on the ground of violation of the right to privacy. The Court herein unanimously held that the right to privacy is a fundamental right guaranteed under the Constitution of India and that the Aadhar scheme was not in violation of the right to privacy. 

Issue and judgement

Whether the right to privacy is a fundamental right guaranteed under the Constitution of India?

The Court observed that even though there is no express provision for the right to privacy under the Constitution, it can be deemed as an extension of the fundamental rights guaranteed under Article 21 of the Constitution. The right to privacy includes the right to informational privacy i.e., a person has the right to control information about himself and also to control the dissemination of such information.

The Court divided the right to privacy into the following parts:

1. Negative rights: The right to privacy is protected automatically under the Constitution irrespective of any separate law being in place for its enforcement. 
2. Positive rights: It is the duty of the state to protect the right to privacy and enact laws for its enforcement. 

The Court also opined that the right to privacy includes the right of control over an individual’s body, the right of protection of personal information and the right to autonomy over personal choices. 

While observing the significance of the right to privacy, the Court concluded that under the Aadhar scheme, information was being collected with the consent of the individuals. The collected information was kept securely and there was no dissemination of personal information that occurred without the consent of the individual. Thus, the scheme was held to be constitutionally valid. 

Entry of women in Sabarimala 

In the case of Indian Young Lawyers Association vs The State Of Kerala (2018), several petitions were filed challenging the ban on the entry of women in the Sabarimala temple as unconstitutional. This ban was placed under the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.

Issue and judgement

Whether the ban on women from entering the Sabarimala temple was unconstitutional?

The Court observed that the fundamental right of religion guaranteed under Article 25 of the Constitution cannot be placed on a higher pedestal than the right of equality guaranteed under Article 14 of the Constitution and the right of non-discrimination guaranteed under Article 15 of the Constitution.

It was noted that the practice of disallowing women was a discriminatory practice based on sex and the ban cannot be called a reasonable classification under Article 14. Further, the right to worship of both men and women under Article 25 should be placed on the same footing and therefore, the ban on entry of women into the Sabarimala temple was termed unconstitutional.  

Decriminalisation of homosexuality

In Navtej Singh Johar vs. Union of India (2018), the dispute regarding the constitutional validity of Section 377 of the Indian Penal Code, 1860 finally came to a conclusion. Section 377 was challenged on the grounds of violation of Articles 14, 15, 19 and 21 of the Constitution. 

Issue and judgment

Whether Section 377 of the IPC is ultra vires to the Constitution of India

The Court observed that homosexuality is not a mental illness. It focused on the duty of the State to provide equal laws for all the citizens and stated that there can be no discrimination on the ground of a person’s sexual orientation. It further called for a regime wherein the sexual minorities could be protected. 

In light of the same, the Court decriminalised homosexuality and held that homosexuality is not against the order of nature and any consensual act of homosexuality cannot be deemed as a criminal offence. It further held that every person has a right to choose the way he wants to live and also his sexual orientation. 

Decriminalisation of adultery

In Joseph Shine vs. Union of India (2018), a writ petition was filed challenging the constitutional validity of Section 497 of IPC on the grounds of violation of Articles 14, 15, and 21 of the Constitution. 

Issue and Judgement

Whether criminalisation of adultery is in violation of the provisions of the Constitution of India

Under adultery laws, a man who entered into a consensual sexual relationship with any married woman could be prosecuted by the husband of the woman. However, the woman, in this case, was not subject to any criminal punishment and a woman was given no right to initiate proceedings if her husband was an adulterer. This was held to be in violation of the right to equality that is guaranteed under Article 14 of the Constitution. The protection granted to women under Section 497 was also termed to be discriminative and violative of Article 15 of the Constitution.

It further observed that the concept of marriage and the matters involved therein constitute the private life of individuals. A criminal offence is an offence that affects society as a whole, but the present case falls under the private domain. In light of the same, it cannot be constituted as a criminal offence. 

Some other cases

Reservations

In Jarnail Singh vs. Lacchmi Narain Gupta (2018), Justice Nariman observed that the exclusion of creamy layer from OBCs should be applied to SCs and STs as well. He held that the purpose of reservation is to protect the backward classes and the people in such backward classes who had socially uplifted themselves should not be allowed to claim reservations.

In Siddaraju vs. State of Karnataka (2020), he observed that reservations in promotions can be granted to people with disabilities under Article 16(1) of the Constitution. 

Appointment of senior advocates in the Supreme Court

In Indira Jaising vs. Supreme Court of India (2017), he called for the adoption of a point-based system for the selection of senior advocates in the Supreme Court on the ground that the current system was arbitrary due to which there was a lack of diversity in the existing senior advocates of the Supreme Court. 

Emergency Arbitration

In Amazon.com v Future Retail (2021), he held that interim awards passed in emergency arbitrations are enforceable under the Arbitration and Conciliation Act, 1996.  

Conclusion

The Hon’ble Chief Justice of India, Mr. N.V. Ramana termed the retirement of Justice RF Nariman as “losing one of the lions of the Supreme Court”. On his last working day, he commented that he had to go through several piles of briefs over time but he enjoyed writing judgments. The number of landmark cases he was part of has surely shaped the stand of the Indian judiciary for the times to come. 

References

• Nariman J: 14 Judgments in Which He Shaped the Law 
• Justice Rohinton Fali Nariman retires today: A look back at the judge’s legacy. 
• https://www.barandbench.com/columns/25-landmark-judgments-justice-rohinton-nariman-arbitration-india 
• Justice Rohinton Fali Nariman retires: A look at landmark judgments by the ‘champion of constitutional rights’ 

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