The Verdictum: Justice Rohinton Fali Nariman

There was no shortage of tributes to Justice Rohinton Nariman this week, as he bid adieu to the Supreme Court after a tenure that lasted almost seven years.

One of the few judges to be directly elevated to the apex court from the Bar, Justice Nariman described his journey during his farewell address.

"When I was at the Bar, I had no idea how it would be like at the Bench. This side (a judge) is much more difficult than a lawyer. You have to read much much more," he said.

Such was his impact as a judge, that members of the Bar described his seven-year as being too short. Some have even advocated for his re-appointment as an ad-hoc judge post retirement.

A master of civil and commercial laws, Justice Nariman passed a number of landmark judgments in the fields of taxation law, insolvency and bankruptcy, arbitration and others. He also rendered verdicts in seminal cases that changed the face of constitutional law jurisprudence in India for years to come.

This piece offers a quantitative analysis of Justice Nariman's time at the Supreme Court, and also delves into the important judgments he passed during his tenure.

Month-wise distribution of rulings

In a tenure that lasted nearly seven years, or 2,594 days to be precise, as per the data available on the Supreme Court website, Justice Nariman passed a total of 774 rulings, out of which he authored 270.

August was Justice Nariman's most productive month, having passed 130 rulings. The months of September (88 rulings) and February (83 rulings) were also fairly productive. His least productive month was, to no surprise, the vacation month of June (14 rulings).

Day-wise distribution of rulings

Justice Nariman passed 0.57 rulings per day during the month of August. The fact that he rendered verdicts in 87 cases in August 2016 while sitting with Justice Kurian Joseph has significantly contributed to this number.

The average number of rulings per day hovered around the 0.3 mark, going up to 0.42 in February and September.

Year-wise productivity

Justice Nariman was responsible for passing a whopping 365 judgments in 2016. To put that in perspective, he rendered one ruling every day in that particular year!

His least productive years were the ones in which he was elevated and in which he demitted office, at 22 rulings in 2014 and 33 rulings in 2021. He passed more rulings in pandemic-hit 2020 (62 rulings) than he did in 2017 (59) and 2018 (53).

Bench-wise distribution of rulings

Justice Nariman was part of a five-judge Constitution Bench 12 times, a member of one nine-judge Bench, and part of a three-judge Bench 114 times.

The judge he delivered rulings most often with was Justice Kurian Joseph (355), accounting for almost half his rulings. He sat with Justice AK Sikri for 96 rulings and with Justice Navin Sinha for 40.

He has also rendered verdicts with five Chief Justices of India - Justices RM Lodha, TS Thakur, JS Khehar, Dipak Misra and Ranjan Gogoi. As is customary, on his last day, he sat with current CJI NV Ramana.

Case-type distribution

Known as a master of civil laws, the majority of rulings passed by Justice Nariman were in civil appeals before the Supreme Court. These account for 85.5% of his rulings

Right to privacy is a fundamental right

Justice Nariman was a part of the nine-judge bench in KS Puttaswamy v. Union of India, where the Supreme Court unanimously ruled that the right to privacy is a fundamental right.

Justice Nariman gave a separate concurring judgment, where he observed that the dignity of the individual encompasses the right of the individual to develop to the full extent of his potential.

“And this development can only be achieved/accomplished if an individual has autonomy over fundamental personal choices and control over dissemination of personal information which may be infringed through an unauthorized use of such information,” he held.

Decriminalizing Section 377 of Indian Penal Code

He was also a part of the five-judge Bench in Navtej Singh Johar v. Union of India, where in a historical decision, the Supreme Court de-criminalised gay sex between consenting adults by reading down Section 377 of the Indian Penal Code (IPC).

In his concurring judgement, Justice Nariman held that homosexual/ LGBTQ persons 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.

The Sabarimala Judgment: Discrimination and custom

In Indian Young Lawyers Association v. State of Kerala, Justice Nariman in his separate, concurring judgment held that the custom of prohibiting women between the ages of 10 to 50 years from entering the Sabarimala temple is violative of Article 25(1), and violative of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.

In the judgment in the review petitions filed against this verdict, while the majority decided to keep the matter pending in view of the possibility of other questions touching upon other religious practices, Justices Nariman and Chandrachud dissented.

The former held in his verdict,

"Organised acts of resistance to thwart the implementation of this judgment must be put down firmly."

Triple Talaq and manifest arbitrariness

He was also a part of the bench in Shayara Bano v. Union of India, where the Constitution Bench of the Supreme Court held that the practice of instant Triple Talaq (talaq-e-bidat) is unconstitutional and violative of Articles 14 and 15.

Significantly, Justice Nariman in his judgment held that manifest arbitrariness can be a ground for striking down a law, marking a watershed moment in the jurisprudence of the Supreme Court.

Adultery

In Joseph Shine v. Union of India, the Supreme Court held that Section 497 of the Indian Penal Code, which criminalized Adultery, is unconstitutional. Justice Nariman in his separate opinion concurred with CJI Misra and Justice Khanwilkar in holding Section 497 as being violative of Articles 14 and 15 of the Constitution.

"In treating a woman as chattel for the purposes of this provision, it is clear that such provision discriminates against women on grounds of sex only, and must be struck down on this ground as well," Justice Nariman held.

Section 66A

One of his most significant judgments was Shreya Singhal v. Union of India, where the Supreme Court declared Section 66A of the Information Technology Act, 2000 as unconstitutional. In light of the fact that the invocation of the provision still persists despite its striking down, a Bench led by Justice Nariman recently sought responses from all States and Union Territories

"Amazing. What is going on is terrible," he remarked while seeking response from the Central government.

Reservations in promotions for Scheduled Caste and Scheduled Tribe communities

In Jarnail Singh v. Lachhmi Narain Gupta, the Supreme Court held that the judgment in M Nagaraj v. Union of India that dealt with reservations in promotions for the SC/ST communities need not be referred to a seven-judge Constitution Bench. However, the finding in the Nagaraj judgment that the State has to collect quantifiable data showing backwardness of SC/ ST communities for them to avail of reservation, was held to be invalid.

Publication of criminal history of candidates by political parties

In Public Interest Foundation & Ors v. Union of India, a Constitution Bench of which Justice Nariman was part directed all political parties in the country to upload on their websites detailed information regarding candidates with pending criminal cases. On finding that this information was not being furnished, while hearing a contempt petition in Rambabu Singh Thakur v. Sunil Arora and Others, a Bench headed by Justice Nariman held that it is mandatory for parties to disclose the same, including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned court, the case number etc.

As a means of following up on these judgments, Justice Nariman recently imposed fines on eight political parties for failing to comply with the top court's directions.

Senior Advocate designation

Justice Nariman was part of the Bench that laid down criteria for Senior Designations which will be applicable to all High Courts and the Supreme Court. In Indira Jaising v. Union of India & Ors, the Court called for the setting up of a Permanent Committee and a Secretariat for each court, which will consider the integrity of the applicant, pro-bono work, reported judgments etc. while processing the applications.

Installation of CCTV cameras in police stations

He was a part of the three-judge bench in Paramvir Singh Saini v. Baljit Singh, where the Supreme Court called for police accountability and democratisation of police stations. To this end, it directed all States and Union Territories to install CCTV cameras with night vision technology in each and every police station across the country.

Right to default bail

In Bikramjit Singh. v. State of Punjab, a three-judge Bench of Justices Nariman, Navin Sinha and KM Joseph held that the right to default bail is not merely a statutory right under the first proviso to Section 167(2) of the CrPC, but a part of the procedure established by law under Article 21 of the Constitution of India.

Cryptocurrency

Justice Nariman was part of the Bench in Internet Mobile Association of India v. Reserve Bank of India, where the Supreme Court struck down a circular issued by the Reserve Bank of India (RBI) which directed banks not to deal in transactions involving cryptocurrency.

Salaries of private school teachers

In State of UP v. Pawan Kumar Divedi & Ors, a Constitution Bench of which Justice Nariman was part held that teachers of privately managed primary schools and primary sections of privately managed high schools are eligible to receive their salaries from the State government.

Tribunalisation in India: The Madras Bar Association cases

In Madras Bar Association v. Union of India, Justice Nariman was part of the Constitution Bench that upheld the Constitutional validity of National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT).

In a previous Madras Bar Association case, he was part of the Bench that held that the formation of the National Tax Tribunal was unconstitutional.

Surcharge on undisclosed income under Income Tax Act

Justice Nariman was part of the Constitution Bench in CIT v. Vatika Township Private Limited, in which it was held that the proviso to Section 113 of the Income-tax Act, 1961 levying a surcharge on undisclosed income had a prospective effect as Parliament specifically chose to make the proviso such.

Justice Nariman also passed a number of judgments that changed the landscape of arbitration law in India.

He was also instrumental in paving the path of the Insolvency and Bankruptcy Code, 2016, identifying major gaps in the law and also in the working of the legislation through his judgments.