Nariman J: 14 Judgments in Which He Shaped the Law

Justice Rohinton Fali Nariman retires on August 12th 2021, after a tenure of seven years. He is one of eight Supreme Court judges who have been elevated directly from the Bar. Supreme Court judges are conventionally elevated from High Courts.

Nariman J has been a part of several significant judgments over the past decade. This includes landmark judgments on privacy, right to life, freedom of speech, and equality. Justice Nariman also wrote 81 out of 164 Supreme Court judgments on the Insolvency and Bankruptcy Code, 2016.

In this post, we look at his key judgments.

Supervising the National Registry of Citizens in Assam

Early in his tenure, a two-judge Bench of Nariman and Gogoi JJ  heard the case of Assam Sanmilita Mahasangha v Union of India (2014). The petitioners in the case had challenged the compromise reached through the Assam Accord, 1985. Under this, Parliament had passed legislation to bestow citizenship on illegal immigrants until 1971. The petitioners argued that this violated the rights of the Assamese to their own culture. This challenge was referred to a five-judge Constitution Bench which is still pending. However, the two-judge Bench issued instructions to ‘detect and deport’ illegal immigrants. Over the next 7 years, this Bench ordered and oversaw the process of updating the National Registry of Citizens in Assam. This process is still underway.

Freedom of Speech on Digital Platforms

Section 66A of the Information Technology Act, 2000 (IT Act), penalised persons for sharing ‘offensive’, ‘annoying’ or ‘inconvenient’ messages. In Shreya Singhal v Union of India (2015), a two-judge Bench noted that the IT Act did not clearly define the meaning of ‘offensive’, ‘annoying’ and ‘inconvenient’. The provision was arbitrary, and violative of the right to freedom of speech.

Nariman J authored this judgment and noted that the scope of s 66A was so broad, that any opinion that was contrary to social norms would be ‘offensive’. This has a chilling effect on the freedom of speech.

Designation of Senior Advocates Must Pass a High Threshold

In 2017, a three-judge Bench consisting of Gogoi, Nariman, and Sinha JJ laid down guidelines for the designation of senior advocates in the Supreme Court. They noted that the designation criteria was previously arbitrary, and did not facilitate diversity among advocates at the SC. They ordered the formation of a selection committee, who would select senior advocates based on a point system. The Bench held that the highest level of scrutiny must be adopted in choosing senior advocates.

It is interesting to note that Nariman J himself was designated as a senior advocate at age 37. Chief Justice M.N. Venkatachaliah reportedly amended the relevant rules in 1993 to change the minimum age for senior advocates to allow the appointment of Nariman J.

Right to Privacy an Inherent Human Right

In Justice K. S. Puttaswamy v Union of India (2017), a nine-judge Bench unanimously upheld the right to privacy in India. While the other judges located the right to privacy in Article 21, Nariman J located the right as ‘inherent’ in every individual. This meant that though it could be found in Article 21 of the Constitution, it was a right that everyone had irrespective of the Constitution. Further, his judgment held that the right extended beyond places where people had a ‘reasonable expectation’ of privacy; it was a right that created the space for individual choice and autonomy.

Voter’s Right to Know

A five-judge Constitution Bench including Nariman J heard a petition requesting the disqualification of electoral candidates with serious criminal charges. In their 2018 judgment, the Bench refused. They held that it was not within the judiciary’s power. However, they urged Parliament to pass a law to disqualify candidates with serious criminal charges. They also ordered political parties to publish criminal charges against their candidates, upholding the electorate’s ‘right to know’. However, these directions were not followed. In 2020 and 2021, Nariman J authored two judgments directing that this information should be published.

Right to Religion is Subject to the Rights to Equality, Non-Discrimination and Health

In 2017, a five-judge Bench comprising Nariman, Lalit, Joseph, Khehar and Nazeer JJ determined the constitutionality of triple talaq. A 3:2 majority held that the practice violated the rights to equality, freedom and life. Writing for himself and Lalit J, Justice Nariman noted that the Muslim Personal Law (Shariat) Application Act, 1937, which recognised triple talaq was ‘manifestly arbitrary’. This is because it allows a Muslim man to break marital ties as per his whims. Since any arbitrariness in law is a violation of the right to equality, the provisions facilitating triple talaq were unconstitutional.

In Indian Young Lawyers’ Association v State of Kerala (2018), the Court declared the provisions under Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965  which disallowed women from entering the Sabarimala Temple, as unconstitutional. Nariman J noted that the right to religion under Article 25 was secondary to the right to equality and non-discrimination: since the exclusion of women from the temple is based solely on sex, it violates Article 15.

In 2019, a Constitution Bench consisting of CJI Ranjan Gogoi, Khanwilkar, Malhotra, Nariman and Chandrachud JJ passed a judgment on the various review petitions filed against the Sabarimala judgment. A 3:2 majority decided to accept the review petitions, and kept the Sabarimala review pending. Since there were several pending cases in the SC that dealt with the  interplay of the right to religion and the right to equality, the issue was referred to a larger nine-judge Bench. Justice Nariman wrote the dissenting opinion on behalf of himself and Chandrachud J. He stated that the only question before the Court was whether the grounds for a review petition were satisfied- the Court should not to look at what a future Bench may hold in similar cases. He noted that the Sabarimala review petitions did not satisfy the grounds for review.

In Nariman and Gavai JJ took suo moto cognisance of the Kanwar Yatra held in Uttarakhand. The annual pilgrimage is attended by 2 to 3 crore people, which the Court viewed as highly ‘alarming’ during the COVID-19 pandemic. The Bench noted that the right to life is paramount and all other sentiments, even religious, are secondary. In their Order on the COVID relaxations for Bakrid in Kerala, the Bench stated that demands from pressure groups were irrelevant, when right to life and health were under threat.

Criminal Law and the Rights to Equality and Dignity

In Navtej Singh Johar v Union of India, a five-judge Bench read down s 377 of the Indian Penal Code, 1860, in September 2018. This case decriminalised homosexuality in India. Nariman J’s concurring judgment stressed that homosexuality was not a mental illness. He ordered sensitisation programs for police and government officials. He also directed the Government to publicise the judgment. On s 377, he noted that social morality cannot be used to criminalise sexual autonomy which is part of the right to privacy.

Later in the month, a five-judge Bench decriminalised adultery by striking down s 497 of the India Penal Code, 1860. Nariman J’s concurring judgment in Joseph Shine v Union of India held that the criminalisation of adultery was based on a feudal understanding of marriage. He also held that in addition to violating the rights to equality, non-discrimination, privacy and dignity, the provision went against constitutional morality.

Reservations: Promotion and Reassessing ‘Creamy Layer’

In 2006, the Supreme Court laid down three conditions for granting reservation in promotions in public employment. These conditions required the State to firstly, demonstrate the ‘current backwardness’ of Scheduled Castes and Scheduled Tribes (SC/ST); secondly, identify the lack of representation of that SC/ST; and finally, prove that efficiency of administration will not be compromised. These conditions made it difficult for the State to ensure reservation in promotions.

In Jarnail Singh v Lacchmi Narain Gupta (2018) a Constitution Bench held that the State need not demonstrate backwardness. The judgment was authored by Nariman J. He referred to Indra Sawhney where the Court held that the collection of data to prove backwardness was not required to grant reservations in promotions.

Nariman J also noted that the creamy layer exclusion applied to SC/STs. Before Jarnail Singh, the creamy layer principle was only applicable to Other Backward Classes. Justice Nariman stated that the purpose of the principle was to ensure that equals are treated the same, and unequals are treated differently. The ‘forward’ among SC/STs must be treated differently from those that are ‘backward’, so that they can avail the benefits of reservation.

In Siddaraju v State of Karnataka (2020), Nariman J clarified that reservations for persons with disabilities did not follow the same rules. Those reservations were provided under Article 16(1), not Article 16(4) for backward classes. So, persons with disabilities could be entitled to reservations in promotions.

Emergency Arbitration Awards are Enforceable in India

Last week, Nariman J delivered a judgment with Gavai J in Amazon.com v Future Retail (2021), allowing the enforcement of Emergency Arbitration awards. In a dispute between the two companies, Amazon took Future Retail to Emergency Arbitration. This was arbitration for an interim award, until the actual dispute could be heard and settled. The Emergency Arbitrators provided interim relief in favour of Amazon. Future Retail argued that Emergency awards of this nature could not be enforced. The Supreme Court Bench disagreed. The Bench held that under s 17 of the Arbitration  and Conciliation Act, 1996, parties could agree to interim awards under Emergency Arbitration and this could be enforced within India.