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A retirement tribute to justice Rohinton Fali Nariman

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Gaurav Thote
Gaurav Thote
Advocate, Bombay High Court

“Let every person remember that the holy book is the Constitution of India, and it is with this book in hand 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 RF Nariman in (2020) 2 SCC 1 (Sabrimala Temple Review case).

The 12th of August 2021 marks Justice Rohinton Fali Nariman’s last day as a judge of the Supreme Court as he turns 65 on 13th of August 2021. Designated as a senior counsel of the Supreme Court at the age of 37, and elevated as a judge of the Supreme Court on 7th July 2014, Justice Rohinton Fali Nariman has contributed immensely to the legal system and its many facets. His persona drove Justice Manepalli Narayana Venkatachaliah, the 25th Chief Justice of India, to amend the minimum age rules, and bestow him with the said title of ‘Senior Advocate’. 

Not only has he presided on benches of constitution strength, but began humble by arguing as a lawyer before the very same benches. Some noteworthy examples of his appearances are before the constitution bench in State of Punjab v. Devans Modern Breweries[1] which dealt with the issue of freedom of trade & commerce under Article 301 and imposition of import fee by the State Government; and the seven-judge bench decision in PA Inamdar v. State of Maharashtra[2] which dealt with the issue of ‘policy of reservation’ in minority educational institutions.

Justice Nariman has served as the Solicitor General of India prior to assuming charge as judge of the Supreme Court in 2014. With great foresight, he set up the Supreme Court Welfare Trust for the greater good of lawyers and is also a member of the Supreme Court’s Mediation Committee. 

Justice Nariman has authored a book titled ‘Inner Fire: Faith, Choice and Modern Day Living in Zoroastrianism’, penning down his thoughts and wisdom on the eternal enigma of the religion of Zoroastrianism. 

Justice Nariman’s perspicacity and knowledge in the field of constitution law has helped the legal system in India to flourish. Not only was he a part of the bench that struck down the penal provision of adultery[3] but was also part of the majority view which struck down[4] the practice of triple talaq as manifestly arbitrary. Observing that the marital tie could be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it, Justice Nariman, in a separate judgment, concurred with the majority view and held the practice of triple talaq to be ultra vires of Article 14. Some of his other noteworthy rulings are:

  • Fundamental Right to Privacy under Article 21[5]

Justice Nariman was a part of the nine-judge bench in the Aadhar case titled Justice KS Puttaswamy (Retd.) v. Union of India which unanimously, on 24th August 2017, upheld the right to privacy as a fundamental right embedded under Article 21. In a separate concurring judgment, Justice Nariman applauded the dissenting opinion of Justice HR Khanna in the infamous ADM Jabalpur Case terming it as a “remarkable dissent”. Justice Nariman overruled the majority opinion in ADM Jabalpur (supra) which permitted suspension of fundamental rights during an emergency as also the judgments rendered in MP Sharma v. Satish Chandra[6] and Kharak Singh v. State of UP[7] which in essence had declined to recognize right to privacy as a constitutional protection.

  • The Sabrimala Temple Case[8]

In the Sabrimala Temple case judgment (delivered on 28th September 2018) Justice Nariman delivered a separate judgment concurring with the majority opinion (authored by the Chief Justice of India) holding the custom/usage of prohibiting women between the ages of 10 to 50 years from entering the Sabarimala temple to be ultra vires of Article 25 on the ground that it discriminated against women based on their gender alone. He also struck down Rule 3(b) of the Kerala Hindu Places of Public Worship Rules (a rule based on the custom) as unconstitutional.

A review petition challenging the judgment has been filed which came up for hearing before a five-judge bench presided by the then Chief Justice Ranjan Gogoi who  referred the matter to a larger bench (by majority of 3:2). Justices RF Nariman and DY Chandrachud strongly dissented from the majority view observing that a review was by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lied only for patent error. However, pursuant to the majority view, a nine-judge bench is currently hearing the reference. 

  • Striking down Section 66A of the Information Technology Act[9]

Justice Nariman authored the judgment that struck down Section 66A of the Information Technology Act which penalized transmission of offensive messages sent through electronic mail or communication service, holding the provision to be violative of the right to free speech guaranteed under Article 19(1)(a). It was observed that the provision cast the net very wide as ‘all information’ that was disseminated over the internet was included within its reach and was thus not saved by Article 19(2).

  • Mandating installation of CCTV Cameras in every Police Station in India[10]

A three-judge bench led by Justice Nariman issued directions for installing CCTV Cameras in the offices of all investigating agencies including all Police Stations, Office of the Narcotics Bureau, CBI, Enforcement of Directorate, National Investigation Agency, SFIO and any other central agency. This order culminated as a result of increase in Human Rights violations alleged by people in custody due to non-compliance of mandatory guidelines. While issuing such directions, the bench held that the directions were issued in furtherance of fundamental rights of each citizen guaranteed under Article 21.

  • Application of “substantive due process” to fundamental right to life and liberty[11]

While deciding an issue concerning compulsory hearing of review petitions filed by death row convicts, a constitution bench (Per: RF Nariman, J) held that the linguistic and textual interpretation adopted by the constitution benches in AK Gopalan v. State of Madras[12] & Kharak Singh v. State of UP[13] vis-à-vis “the procedure established by law” under Article 21 stood overruled in view of the dictum laid down by larger benches in RC Cooper v. Union of India[14] and Maneka Gandhi v. Union of India[15]. It was thus held that words “procedure established by law” under Article 21 of our constitution were to be interpreted as “due process of law”.

  • Striking down Section 377 of IPC as unconstitutional[16]

Justice Nariman delivered a separate judgment concurring with the majority opinion that struck down Section 377 of the Indian Penal Code which criminalized voluntary sexual relations between the same gender, holding the provision to be manifestly arbitrary, discriminatory and violative of Articles 14, 15 & 21. Observing that everyone was equally entitled to protection of equal laws, Justice Nariman overruled the previous judgment of Suresh Koushal v. Naz Foundation which had upheld the criminality of homosexual sex and transgender sex.

  • Constitution of Special Investigating Team to conduct probe in specific cases[17]

On December 14, 2020 a full bench presided by Justice Nariman held that a court cannot be a silent spectator if the investigating agencies do not perform their duties in accordance with law. In the present matter, the First Information Report for the offence of murder was registered in 2015 and the investigation which was pending since the time was promptly closed in 2019 after the Court had issued notice in 2018. The affidavit of the Director General of Police was found to be unsatisfactory pursuant to which the Court directed the concerned Officer to file the Closure Report. After perusing the Closure Report, the bench opined that the investigation and closure report were extremely casual perfunctory in nature. Observing a fair investigation to be a necessary concomitant of Articles 14 and 21, a senior officer of the Indian Police Service was appointed to carry out further investigation in the matter and file a report before the Supreme Court. 

  • Right to default bail not mere statutory right, but part of procedure established by law[18]

On 12th October, 2020 a three-judge bench headed by Justice RF Nariman held that the right to default/statutory bail was not a mere statutory right under the first proviso to Section 167(2) of the code of criminal procedure but was part of the fundamental rights contained under Article 21 of the Constitution of India. Referring to a spate of precedents on the issue, the bench set aside the orders of all the lower Courts holding that the indefeasible right which had accrued to the accused on account of default, could not be defeated on any ground.

  • Confessions made by accused before authorized officers under the NDPS Act inadmissible in evidence[19]

On October 29, 2020 a three-judge bench led by Justice Nariman answered an important and long pending reference pertaining to the evidentiary value of confessional statements made before authorized officers under the NDPS Act. The majority opinion of Justice Nariman, while observing no safeguards contemplated to record confessions before authorized officers under the NDPS Act, noted that it would be a direct infringement of Articles 14, 20(3) and 21 of the Constitution if such confessional statements were held to be admissible in evidence.

  • Striking down the rigors of twin conditions for grant of bail in matters of Money Laundering

On November 23, 2017 a bench presided by Justice Nariman struck down Section 45 of the Prevention of Money Laundering Act which imposed the rigors of twin conditions for grant of bail as manifestly arbitrary, discriminatory and opposed to Articles 14 and 21 of the Constitution. The bench observed that though Article 14 permitted reasonable classification, such classification was to bear a rational relation to the object sought to be achieved, which was not the case in the issue at hand.

  • Release from jail for not following guidelines of arrest[20]

On 5th February 2021, a bench of Justices RF Nariman and BR Gavai granted ad-interim bail to one Munawar Faruqui in a case registered against him for allegedly hurting religious sentiments. The bench observed that the procedure of arrest contained under Section 41 of the code of criminal procedure was not followed as adumbrated by the Supreme Court in Arnesh Kumar v. State of Bihar[21]. In this backdrop, the petitioner was not only released from jail but also the judgment of the High Court of Madhya Pradesh rejecting his plea for bail and all warrants against him were stayed.

Justice Nariman’s judicial foresight and prescient caliber are interwoven in his judgments and orders. His perspective and regard for the Constitution outweighs all. On 3rd September 2020 he was appointed as Chairman of the Supreme Court Legal Services Committee.

With over 500 reported Supreme Court judgments to his credit, Justice Nariman’s tireless contributions to the legal realm have been preeminent and stirring. From arbitration law to criminal law, he has delivered judgments on divergent issues. Although his soon to be retirement has deprived the nation a chance to see him become the Chief Justice of India, the Indian Judiciary is fortunate to have had a man of his stature hold the reins in the Supreme Court.

The judiciary and legal system will continue to thrive on his constitutional insight and prolific outlook, and future generations will look up to his sheer excellence of upholding the law as paramount.

[1] (2014) 11 SCC 26

[2] (2004) 8 SCC 139

[3] Section 497 of Indian Penal Code

[4] (2017) 9 SCC 1

[5] (2017) 10 SCC 1

[6] (1954) SCR 1077

[7] (1964) 1 SCR 332

[8] (2019) 11 SCC 1

[9] Shreya Singhal v. UOI

[10] (2021) 1 SCC 184

[11] (2014) 9 SCC 737

[12] (1950) SCR 88

[13] supra

[14] (1970) 1 SCC 248

[15] (1978) 1 SCC 248

[16] Navtej Singh Johar v. UOI

[17] SLP (Criminal) No. 6951 of 2018

[18] (2020) 10 SCC 616

[19] (2021) 4 SCC 1

[20] 2021 SCC OnLine SC 60

[21] (2014) 8 SCC 273

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Gaurav Thote
Gaurav Thote
Advocate, Bombay High Court
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