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Sunday, September 19, 2021

Justice Rohinton Nariman exits, batted for free speech, privacy

Son of noted jurist Fali Nariman and a postgraduate from Harvard Law School, Nariman was designated as a senior counsel in December 1993, at the young age of 37.

Written by Ananthakrishnan G | New Delhi |
Updated: August 13, 2021 7:35:14 am
Supreme court judge Justice RF Nariman addresses the gathering during his farewell on retiring in New Delhi on Thursday. (Express Photo by Tashi Tobgyal)

JUSTICE ROHINTON Fali Nariman, who demits office Thursday after seven years as a Supreme Court judge, leaves behind a trove of judgments that sought to further free speech, privacy and personal liberty, cleanse politics, rein in constitutional authorities and recalcitrant businesses and ensure gender justice.

Son of noted jurist Fali Nariman and a postgraduate from Harvard Law School, Nariman was designated as a senior counsel in December 1993, at the young age of 37.

The judiciary, however, had no doubts on his merit, and in little over a year, on July 7, 2014, he was sworn in as a Supreme Court judge, making him the fourth such counsel to be directly elevated from the bar to the bench.

While practising as a senior counsel in the Supreme Court, he was appointed Solicitor General of India in July 2011 for three years. But in February 2013, he gave up the position. Speculation was rife that he quit following differences over some directions of the then law minister Ashwani Kumar, but his resignation letter gave no hints.

The judiciary, however, had no doubts on his merit, and in little over a year, on July 7, 2014, he was sworn in as a Supreme Court judge, making him the fourth such counsel to be directly elevated from the bar to the bench.

Justice Nariman minced no words when it came to judgments.

In March 2015, writing for a two-judge bench that struck down the controversial Section 66A introduced by the UPA government in the Information Technology Act, 2000, he said it is clear that the provision “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”.

“Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total,” he said about the provision, which empowered police to arrest people for comments on social media.

Justice Nariman minced no words when it came to judgments.

In August 2017, a majority judgment by him and two others held as unconstitutional the centuries-old practice of instant triple talaq or talaq-e-biddat. In doing so, Justice Nariman laid out a new rule of jurisprudence – that manifest arbitrariness can be a ground for striking down a law.

That month also saw a nine-judge bench, including him, rule unanimously in the landmark Aadhaar case that “privacy is intrinsic to freedom of life and personal liberty guaranteed under Article 21 of Constitution”.

Decriminalising homosexuality in 2018 in the Navtej Singh Johar and Others vs Union of India case, Justice Nariman was categorical that “persons who are homosexual have a fundamental right to live with dignity… are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them”.

In September 2018, a Constituion bench composing Justice Nariman struck down Section 497 of the Indian Penal Code that makes adultery a punishable offence for men, saying the 158-year-old law was unconstitutional and fell foul of Article 21 (Right to life and personal liberty) and Article 14 (Right to equality).

An ordained Parsi priest, his knowledge of scriptures and philosophies of major religions made him an obvious choice for the bench which took up petitions challenging restrictions on entry of women of a particular age in the Sabarimala shrine. He spoke on gender rights in September 2018, concurring with the majority 4:1 verdict which favoured doing away with the restrictions.

Justice Nariman was also part of the bench which saw through the updation of the National Register of Citizens (NRC) for Assam. Rights groups had criticised the exercise, saying it violated the 1955 Citizenship Act.

In August 2018, the bench reprimanded Assam NRC Coordinator Prateek Hajela and Registrar General and Census Commissioner Sailesh for giving statements on the process to the press and warned them of contempt action and time in jail. Though Hajela tendered an apology, Justice Nariman told him: “What apology? We find this very strange… Speaking for myself, I am appalled.”

In December 2020, a three-judge bench headed by him directed installation of CCTV in offices of central agencies such as the CBI and NIA and in all police stations, in a bid to further protection of human rights.

On affirmative action, a constitution bench comprising him in September 2018 upheld the creamy layer principle of excluding the affluent among SC/STs from the ambit of reservation.

Justice Nariman also had his ways of dealing with constitutional authorities and private entities.

In March 2020, a bench headed by him did not take kindly to the delay by Manipur Assembly Speaker in deciding pleas seeking disqualification of minister Thounaojam Shyamkumar Singh. The bench took upon itself the responsibility of removing Singh from the state cabinet, invoking its extraordinary powers under Article 142 of the Constitution.

Justice Nariman was also part of the bench which saw through the updation of the National Register of Citizens (NRC) for Assam.

Another bench headed by him found Reliance Communications Ltd chairman Anil Ambani guilty of contempt of court in February 2019 for not honouring an undertaking to pay Rs 550 crore in dues to Ericsson India Ltd.

Justice Nariman also did his bit to clean up elections, directing political parties last year to make public details of criminal cases against its candidates within a stipulated time. On Tuesday, a bench headed by him held nine political parties guilty of contempt.

His command over commercial laws also made his bench the principal destination for such matters.

On August 6, 2021, a bench headed by him upheld the October 25, 2020 interim award of the Emergency Arbitrator under the Arbitration Rules of the Singapore International Arbitration Centre, restraining Kishore Biyani’s Future Retail Limited from selling its assets to Mukesh Ambani’s Reliance Infrastructure Group in what was touted to be a multi-billion deal.

In May 2016, writing for a two-judge bench, Justice Nariman held the Telecom Consumers Protection Regulations, 2015, that made telecom providers liable to credit each calling consumer Re 1 for each call drop within its network, as ultra vires under the Telecom Regulatory Authority of India Act.

Dealing with petitions on the subject of wealth tax, a bench headed by him ruled in September 2020 that the prestigious Bangalore Club cannot be brought into the wealth tax net.

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