Justice Rohinton Nariman’s Legacy: ‘Whence Comes Such Another?’

This look at Justice Rohinton Fali Nariman’s brief judicial career is written more in the spirit of “I come to bury Caesar, not to praise him”. Rohinton Nariman could instinctively recite this or any other Shakespearean line, along with the entire passage that followed. From his earliest years, Rohinton has been blessed with an almost photographic memory and he can cite at will large passages from literature, legal judgments, and western classical music. He once told me that he could remember almost every note written by Beethoven and I for one would not dare challenge him on his memory. He attributed his almost photographic memory to his training in his adolescent years, as a Parsi priest. He had to memorise long prayers in a dead language called Avestan.

As Fali Nariman’s son, he has had to spend a large portion of his life under the overarching shadow of a legal colossus. It was not without a certain sense of irony that Justice TS Thakur once commented to Rohinton Nariman, the lawyer, “You see Mr. Nariman, a common problem that we share, is that we both have had overachieving fathers”.

From his earliest years in the profession, Rohinton did his best to develop an individual identity and voice which distinguished him from his father. He was unlike many a legal prince to the manor born, who were content to go through life in the reflected glory of their parent’s achievement. Rohinton Nariman’s achievements at the bar were many. He and Gopal Subramanium were designated as senior advocates by the Supreme Court when in their 30s. Both went on to successively serve as Solicitor General for India. Towards the end of the UPA regime, came the news that both had been recommended for appointment as judges of the Supreme Court.

It came as a surprise to many of his friends and acquaintances in the bar that Nariman had accepted a direct elevation to the Supreme Court, even when it was clear that he would not become the Chief Justice of India. Having known of his fierce independence as a lawyer and his temperament which did not gladly suffer fools, even his friends were apprehensive that his judicial aptitude might be wanting. Many good lawyers have made bad judges and many indifferent lawyers have made very good judges.

Within days of his appointment, Rohinton proved all our fears to be unfounded. He proved to be normally polite, courteous, helpful though somewhat an impatient judge. He was quick to dispose of matters and could often make the counsel’s argument even before it was actually made. The one thing that infuriated him was a counsel being less than fair or honest with the Court.

Rohinton Nariman can justly be proud of having delivered judgments that future generations of lawyers and judges will engage and grapple with for decades into the future. It is an intriguing anomaly of the Supreme Court, that many of its best judgments and ideas come not from Chief Justices but from other judges, who needed no chief justiceship to further enhance or ennoble, their stature.

The earliest judgment which brought him to national attention was Shreya Singhal in 2015. His judgment struck down Section 66A of the Information Technology Act which was an overbroad section that was given to much misuse on the part of the police and the administration. Drawing upon his knowledge of Shakespeare he relied on Mark Antony’s speech to draw the distinction between ‘discussion’, ‘advocacy’ and ‘incitement’. He ruled “The petitioners are right in saying that Section 66-A in creating an offence against persons who use the internet and annoy or cause inconvenience to others very clearly affects the freedom of speech and expression of the citizenry of India at large in that such speech or expression is directly curbed by the creation of the offence contained in Section 66-A.” This judgment freed up cyberspace to become a genuine marketplace of ideas.

His judgment in Assam Sanmilita Mahasangha referred to the Constitution Bench a whole host of issues of citizenship. To my mind, it ranks probably as one of the most xenophobic statements of law to have come out of any constitutional court of the world. One of the questions referred was “What is the true interpretation of Article 355 of the Constitution? Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”? Does the expression “State” occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?”. This reference order and the accompanying series of orders which dealt with the updation of the National Register of Citizens in Assam have led to a backlash among the minorities throughout the country. This particularly came to the fore during the protests against the Citizenship Amendment Bill.

This part of his judicial legacy seems to have been unduly influenced by his companion on the bench, Justice Ranjan Gogoi, who hailed from Assam. As these issues are still at large before the Constitution Bench of the Supreme Court and are still being debated politically, it may be best to say no more on the subject.

Probably his greatest gift to the development of law was his judgment in 2017, in the Shayaro Bano (‘Triple Talaq case’). It enshrined “manifest arbitrariness” as a ground to invalidate legislation. Agreeing with the majority, he held "Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place… This being the case, it is clear that this form of talaq is 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. This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India…”

That year also allowed him to display his full range as a commercial lawyer when he interpreted the provisions of the Insolvency and Bankruptcy Code, 2016 in Mobilox vs Kirusa by explaining the contours of the ‘existence of a dispute’ between an operational creditor and a corporate debtor. He greatly added to criminal law in the Nikesh Tarachand case, when he struck down the twin conditions for grant of bail as enumerated in Section 45(1) of the Prevention of Money Laundering Act, 2002. In another case, he also restored criminal conspiracy charges against LK Advani and others in their trial relating to the Babri Masjid demolition case that was directed by him to be decided by the Special Judge within a period of 2 years from then.

In 2018, in the Sabrimala case, he gave full vent to the fundamental rights of freedom of religion as protected under Article 26 of the Constitution and concurred with the view of the majority by declaring that the custom or usage of prohibiting women between the ages of 10 to 50 years from entering the Sabrimala temple is violative of their right to practice their religion under Article 25(1) of the Constitution. Even when the judgment was sought to be reviewed, he authored a dissenting opinion on behalf of Justice DY Chandrachud and himself where he dismissed the review petitions. He repelled the contention raised by some of the review petitioners that in light of the mass protests against the judgment of the Court under review, the position laid down in the said judgment ought to be re-examined. He said “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 endeavour to achieve the great goals set out by this “Magna Carta” or Great Charter of India.”

In 2020, in the Essar Steel case, he confirmed the primacy of the ‘commercial wisdom’ of the committee of creditors in taking business decisions relating to accepting or rejecting a resolution plan or deciding the quantum payable to different categories of creditors. This, along with the ‘fresh slate doctrine’, furthered the objective of the Insolvency and Bankruptcy Code, 2016, one of which is to ensure the revival of the corporate debtor as a going concern.

In Manipur when an MLA, after being elected from a Congress ticket, joined the BJP as a minister in the cabinet and the Speaker failed to decide the disqualification petitions pending against him, Justice Nariman chose to exercise the Supreme Court’s powers under Article 142 of the Constitution of India barred the said minister from entering the legislative assembly and stated that “he will cease to be a minister of the Cabinet immediately.”

Earlier this year, a stand-up comedian, Munawar Faruqui, was arrested in Indore in a case filed by the convenor of a local Hindu outfit. Faruqui had been accused of making several indecent remarks against Hindu deities and the Union Home Minister. The High Court had refused to grant Munawar bail, but Justice Nariman in the Supreme Court granted him ad interim bail on the ground that the procedure contained in Section 41 of the CrPC as set out in an earlier judgment of the Court in Arnesh Kumar's case had not been followed.

The judgments noted above are not intended to be a comprehensive list of Rohinton Nariman’s entire legal legacy. He has left to the Court a much broader vision of the law.

He was not unnecessarily deferential to elected authoritarians nor was he self-abnegatory when a judicial response was required.

Barely a few weeks before his retirement, he took suo moto cognizance of the havoc that the Kanwariya pilgrimage could wreck in the age of the pandemic. It was his determined intervention that saw the otherwise vote-bank-minded governments at the centre and state back down. A few days later, he applied the same principles even to the gathering of large crowds during Bakra-Eid in Kerala.

Justice Nariman was a stickler for work and whenever possible tried to fully utilise the Court’s hearing time. He sat exactly at 10:30 am and rose at the end of the Court’s day at 4 pm. He was a fast worker as a judgment writer.

Even in his closing week he came out with two major judgments. The first is the Amazon-Future case where he allowed the enforcement of an emergency award issued in foreign arbitraton proceedings. The second judgment in the Bihar legislators case deals with criminalisation of politics. He has left a detailed roadmap for ensuring that political parties as far as possible do not give tickets to candidates with serious criminal records. He observed “the nation continues to wait, and is losing patience. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government.”

One of the tests of a judge’s legacy is the appointments that he makes or facilitates when he is a member of the collegium. Rohinton Nariman does not seem to have left any legacy of appointing any favourites to judicial office. There appears to be some evidence of him having been actively opposed to certain appointments, especially to the Supreme Court. It is not without reason that there have been no appointments to the Supreme Court since Sept. 23, 2019, when Chief Justice SA Bobde’s collegium appointed Justices Krishna Murari, Ravindra Bhat, V Ramasubramanian, and Hrishikesh Roy to the bench. With many vacancies in the Supreme Court, it is significant that future recommendations will be made by the collegium only after Rohinton Nariman demits office.

As he demits office, Rohinton can be justly proud of having fully justified Chief Justice RM Lodha’s faith in him when he pushed through direct appointments from the Supreme Court bar to the bench. Four appointments from the Supreme Court bar were made and Rohinton’s name like Abou ben Adhem has led all the rest. It is but apt to ask, “whence comes such another?”

Sanjay Hegde is a Senior Advocate at the Supreme Court of India. Disclosure: Justice Rohinton Fali Nariman and the author have been friends at the bar and the reader is advised to account for a possible bias on the author’s part.

The views expressed here are those of the author, and do not necessarily represent the views of BloombergQuint or its editorial team.