A TRIBUTE TO JUSTICE ROHINTON NARIMAN’S

On August 12, Justice Rohinton Nariman’s seven-year career as a Supreme Court judge came to a halt. On July 7, 2014, he was appointed to the Supreme Court as the fifth senior counsel to be elevated from the bar to the court. 

During his time on the bench, Justice Nariman has written significant decisions that have shaped the country’s emerging jurisprudence on individuals’ fundamental rights and liberties. Justice Nariman was also a member of the bench that oversaw the contentious NRC process in Assam and operationalized Foreigners Tribunals, which put doubt on the citizenship of millions of Assamese residents and led to the arrest of thousands of them after they were labelled as “illegal migrants.” He was also a member of the bench that issued the infamous suo motu order to investigate the supposed “bigger conspiracy” underlying the sexual harassment claims levelled against then-CJI Ranjan Gogoi.

Justice Nariman deserves credit for resolving a number of issues in the new subject of insolvency law and guiding arbitration law in the correct direction. He has also issued directives to guarantee that politics is decriminalised by compelling political parties to publish candidates’ whole criminal histories. In the Babri Masjid destruction case, it was his decision that resurrected the criminal conspiracy accusations against BJP leaders LK Advani, Uma Bharati, Kalyan Singh, and others. He presided over a bench that set a timeline for the trial in the Babri Masjid demolition conspiracy case, which resulted in the acquittal of all defendants in September of last year.

1JUSTIC NARIMAN: THE ADVOCATE

Justice Nariman registered in the bar in 1979 but proceeded further to his LL.M. at Harvard thereafter in 1980-81. Following his LL.M., he worked at Haight, Gardner, Poor & Havens in New York for a year before returning to India. He was named a Senior Advocate in 1993, while he was only 37 years old. The regulations were only changed to designate Nariman as Senior Advocate by the then Chief Justice of India, the Hon’ble Mr. M.N. Venkatachalaiah, because the minimum age for becoming a Senior Advocate at the Supreme Court was 45 at the time. 

Some of the predominant Justice Nariman contended as a Counsel are Express Hotels (P) Ltd. v. State of Gujarat (1989); Synthetics and Chemicals Ltd. v. State of U.P. (1990); Khoday Distilleries Ltd. v. State of Karnataka (1995); P.A. Inamdar v. State of Maharashtra (2005); and many others. At the age of 55, he was ordained as the Solicitor General. Some notable cases he argued throughout his tenancy are Vodafone International Holdings BV v. Union of \sIndia (2012); Ramlila Maidan Incident, In re (2012), Ratnagiri Gas and Power (P) Ltd. v. RDS Projects Ltd. (2013) and State of Gujarat v. R.A. Mehta (2013).

2.JUTICE NARIMAN: THE JUDGE

Justice Nariman had become the fifth Advocate to be subsequently elevated as a Supreme Court Judge on July 7, 2014. S.M. Sikri, Kuldeep Singh, SC Roy, and Santosh Hegde JJ. have all been promoted directly from the bar to the bench before him. Justice Nariman acquired the respect and admiration of his colleagues, both members of the bar and the general public, in the same way he did at the bar. During his seven-year service, he not only participated in, but also authored, key decisions that changed India’s constitutional and legal history. 

Several of his subsequent decisions were indeed Gemini Bay Transcription \sPvt. Ltd v. Integrated Sales Service Ltd (2021); Amazon.com NV Investment Holdings LLC v. Future Retail Limited (2021); Union of India v. Rajendra N. Shah (2021); Swiss Ribbons (P) Ltd. v. Union of India (2019); K.S. Puttaswamy \sv. Union of India (2017); Shreya Singhal v. Union of India (2015); Navtej Singh Johar v. Union of India (2018); Joseph Shine v. Union of India (2019); Indian Young Lawyers Assn. v. State of Kerala (2019); Shayara Bano v. Union of India (2017) and several others.

3.BREIF OF SOME OF THE NOTABLE JUDGEMENTS OF JUSTIC NARIMAN

Judgments on fundamental rights

  • Review petitions in death penalty cases must be heard in Open Court

In 2014, Justice Nariman authored the judgment for the majority of the Constitution Bench that had delivered the landmark decision of Mohd. Arif v. The Registrar, Supreme Court which held the open court hearing was mandatory in review petitions against death sentences and that they should be heard by a bench of three judges.

“When it is a question of life and death of a person, even a remote chance of deviating from such a decision while exercising the review jurisdiction, would justify oral hearing in a review petition”, Justice Nariman had observed.

  • Unconstitutionality of Section 66A of the IT Act, 2000

Justice Nariman’s 2015 judgment in the case Shreya Singhal v. Union of India declared Section 66A of the Information Technology Act, 2000 to be unconstitutional and in violation of Article 19(1)(a) of the Constitution of India. The judgment stated that several terms in the provision were “open-ended, undefined and vague” which made them nebulous in nature.

It is clear that Section 66A 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, Justice Nariman observed in the judgment.

“The Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth”, the judgment added.

However, the same judgment repelled the challenge against Section 69 IT Act, which authorizes enryption and intercpetion of electronic communication.

  • Dissent in Sabrimala Review verdict

Consequently in November 2019, Justice Nariman along with Justice D.Y Chandrachud had delivered their dissenting judgement against the Sabrimala Review (Kantaru Rajeevaru v. Indian Young Lawyers Association and Ors) wherein strong observations were made against the non-compliance of the Supreme Court’s original decision in the case. Justice Nariman had emphasized that while the citizenry was constitutionally empowered to express bona fide criticism of a judgement, it was not permissible to ‘thwart‘ or ‘encourage persons to thwart‘ the directions or orders of the highest Court.

‘Let every person remember that the ‘holy book’ is the Constitution of India and it is with this book in hand that the citizens of India march together as a nation, so that they may move forward in all spheres of human endeavor to achieve the great goals set out by this ‘Magna Carta’ or ‘Great Charter of India, Justice Nariman had observed in his dissenting judgement.

  • Decriminalization of Adultery

He was also a part of the 5 judge Bench which had in September 27, 2018 unanimously struck down Section 497 of the Indian Penal Code (IPC), thereby decriminalizing adultery. Justice Nariman in his concurring judgment in Joseph Shine v. Union of India had declared Section 497 of the IPC and Section 198 of the Code of Criminal Procedure, 1973 (CrPC) to be in violation of Articles 14, 15(1), and 21 of the Constitution of India.

Opining that such criminalisation of adultery degrades the agency and status of a woman, Justice Nariman had passionately observed,

The real heart of this archaic law discloses itself when consent or connivance of the married woman’s husband is obtained – the married or unmarried man who has sexual intercourse with such a woman, does not then commit the offence of adultery. This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the chattel by the “licensor”, namely, the husband, no offence is committed. Consequently, the wife who has committed adultery is not the subject matter of the offence, and cannot, for the reason that she is regarded only as chattel, even be punished as an abettor. This is also for the chauvinistic reason that the third-party male has “seduced” her, she is his victim. What is clear, therefore, is that this archaic law has long outlived its purpose and does not square with today’s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today’s day and age, utterly irrational”

By Avnip Sharma

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