As Justice Rohinton Fali Nariman retires as a Supreme Court judge, INDIRA JAISING looks back at his judicial career, and writes about how she will remember his tenure.
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MUCH has been and will be written about Justice Rohinton F. Nariman, who retires from the Supreme Court today.
Justice Nariman stepped into history on July 7, 2014, as the first judge to be appointed under the current National Democratic Alliance government, which assumed power on May 26, 2014.
Since then, many of us have noticed that the very idea of India has been under attack. The declared Hindutva agenda of the party in power was soon to have an impact on the kind of cases which would come before the courts.
As a sensitive judge belonging to a minority community, Justice Nariman could not have failed to notice these changes. Yet, given that the Indian Supreme Court does not sit en bloc but in benches, he could only address those issues that were specifically assigned to the Benches on which he was a party, or which he headed.
There are many ways to evaluate his contributions during his seven years' tenure which, by any reckoning, would be considered a lengthy tenure.
Being a rare direct appointee from the Bar, much was expected of him. Known to be a headstrong senior advocate with dynasty and legacy on his side, there was some apprehension about how he would perform as a judge.
However, having established an identity for himself separate and distinct from his illustrious father, the noted jurist Fali S. Nariman, he found no difficulty in seeking out his own path, both as a lawyer and as a judge.
His career was diverse, spanning from his law practice in Bombay to his brief stint in New York at a maritime law firm, and later his practice in Delhi. He was appointed Solicitor General of India in 2011 on the recommendation of the late G.E. Vahanvati, the then-Attorney General of India. Soon to be disillusioned by the demands of the then Union Law Minister, he resigned after only eighteen months. But there is hardly any doubt that his experience equipped him to move onto greater heights.
On the Bench, he was transparent, interactive and forthcoming with members of the Bar; always expressing doubts and questions which he needed to be addressed. This quality of his endeared him to the Bar.
As a judge, his contribution to public good has been immense, and his commitment to liberty reflects in his judgments. One of the earliest judgments that he delivered was in the case of Mohd. Arif & Ors. vs. Registrar, Supreme Court of India & Ors. (2014) wherein he authored the majority judgment which established the requirement of addressing review petitions seeking the review of judgments imposing the death penalty in open court rather than in by circulation, that is, behind closed doors in judges' chambers.
Two of his most often-quoted judgments, Nikesh Tarachand Shah and Tofan Singh, have come in the field of criminal law, in which he demonstrated the significance of constitutional law in deciding the validity of a criminal statute.
His landmark judgment in Shreya Singhal demonstrated his commitment to the right of free speech on the internet.
In his judgment in Shayara Bano, he got the opportunity to develop his concept of "manifest arbitrariness", which he had consistently argued as a lawyer without success. He held that the practice of triple talaq was "manifestly arbitrary" and hence unconstitutional as being violative of Article 14 of the Constitution of India.
This judgment is particularly significant for it is perhaps the first in recorded Indian jurisprudence which grapples with the issue of the unconstitutionality of practice and procedure of uncodified personal laws.
Former Chief Justice of India (CJI) Justice Dipak Misra constituted a constitution bench that decided several cases of great constitutional importance, such as the right to privacy case (Justice K.S Puttaswamy), the triple talaq case (Shayara Bano), the Sabarimalai temple case (Indian Young Lawyers Association), the case on the constitutionality of Section 377 IPC case (Navtej Singh Johar)and the case on the constitutionality of the criminal offence of adultery (Joseph Shine), among others, of which Justice Nariman was a member. It was a golden period for Indian jurisprudence, in which there was near unanimity among the five judges of the bench regarding the basic constitutional concerns of liberty, equality, fraternity and dignity. This unprecedented phase in the functioning of the Supreme Court has not been repeated till date.
Justice Nariman was a member of the bench which was constituted in the aftermath of the allegation of sexual harassment made by a female employee of the apex court against the then CJI, Justice Ranjan Gogoi, to deal with the suo motu petition titled 'In a matter of great public importance touching upon the independence of the judiciary'. While on the bench, he concurred with the presiding judge Justice Arun K. Mishra that an inquiry should be made into the possibility of manipulation by corporate houses of the Supreme Court as an institution. An order was passed appointing Justice A.K. Patnaik to conduct an inquiry and submit a report to the court in this regard.
Although the report has been furnished to the Supreme Court, it has never been made public. Justice Nariman will perhaps be at liberty to tell the untold story of that report after his retirement.
The sexual harassment complainant has since been reinstated as a Supreme Court staffer, and Justice Gogoi has been appointed a Member of the Rajya Sabha. Recently, it was reported that the complainant and 11 of her family members were potential targets of the Pegasus spyware. This has arguably been the most unsavoury episode in the functioning of the Supreme Court, leaving many questions of propriety and legality unanswered.
In another incident relating to orders passed by his court, evidence had emerged that two court masters could have manipulated orders that were dictated in open court by the bench presided over by Justice Nariman. That too is an episode shrouded in mystery, since the court masters in question were sacked in 2019 by then CJI Justice Gogoi, before being pardoned in May this year by then CJI Justice S.A. Bobde.
While Justice Nariman may have been bound by an unwritten ethical code amongst judges not to speak about these issues during his tenure, one may look forward to his throwing light onto these two episodes in the interest of transparency in the functioning of the judicial system.
Justice Nariman along with Justice Gogoi was also a part of the special bench at the Supreme Court that heard the matter related to the National Register of Citizens (NRC) in Assam. The bench passed crucial orders which led to the publication of the final NRC in July 2018.
Justice Nariman was born in the shadow of the legacy of his father Fali S. Nariman, who is one of the most distinguished lawyers this country has ever seen. Yet, he carved out an identity for himself and was not seen as just his father's son. He is one of the youngest lawyers to be designated as Senior Advocate at the Supreme Court at the age of 37, and also served as Solicitor General of India.
As one of the most successful practicing lawyers at the Bar, he was known to be generous, having established several trusts for the welfare of the legal profession.
Life compelled him to be liberal in more ways than one, when his daughter decided to marry outside the Parsi community. He stood by her, treating all religions as one. Being an ordained priest, he authored a book on the Zoroastrian religion and would seek out friends who could enlighten him on all religions.
For me, it was a singular pleasure to appear before him in person when I had challenged before the Supreme Court the manner and method of appointment of Senior Advocates by the higher judiciary. I received no encouragement in filing that petition but was determined to ensure that the method of designation is transparent and objective.
To the surprise of the members of the Bar, the three-judge division bench of Justices Gogoi, Nariman and Navin Sinha delivered a judgment putting in place an objective method, which I would say is a step in the direction of the reform of the legal profession and a step in the direction of ending the monopoly of senior advocates in the Bar.
(Indira Jaising is a human rights activist and senior advocate at the Supreme Court of India. She is also the co-founder of The Leaflet. The views expressed are personal.)