'One Man Army': Justice Rohinton Nariman Retires, But What Will be His Legacy?

Justice Nariman is celebrated as a "game-changer", who focused just on law. But his record also has a blot— the NRC.

Justice Rohinton Nariman

(Photo: BloombergQuint)

Justice Rohinton Fali Nariman, only the fifth lawyer to be directly elevated to the Supreme Court as a judge, retired from the post on 12 August. Despite a brief judicial career of 7 years, Justice Nariman has authored more than 500 judgments, including 'game-changing' opinion in some landmark constitutional matters.

A former Solicitor General of India, Justice Nariman became a senior advocate at just 37 years of age. Interestingly, Chief Justice of India MNR Venkatachalaiah had to amend the rules for making Nariman a senior advocate, as at that time the minimum age for becoming a senior was 45.

Justice Nariman's jurisprudence at the Supreme Court is marked with cases which were not only legally complex but also politically charged.

Therefore, we revisit some of those cases to highlight how he cut the clutter, reoriented the focus on the legality, and delivered rulings, on most occasions, that privileged constitutional morality over majoritarian sentiments.

Constitutional Democracy Can't Conceive An Arbitrary Law

Perhaps one of the most significant judicial legacies Justice Nariman will leave behind is his articulation of the principle that a legislature which swears by the principles of constitutional democracy cannot create a law which is manifestly arbitrary.

Justice Nariman brought life back to the test of 'manifest arbitrariness' test in Shayara Bano vs Union of India ( the triple talaq case), highlighting that the test is inherent in right to equality guaranteed under Article 14 of the Constitution.

In the part of the judgment that he authored, we see a clear iteration of the principle that the government cannot pass a law which is "manifestly arbitrary": a law which instead of being based on rationality and reason, is a product of someone's 'personal will'.

This principle is not only to be found in the triple talaq judgment, but its hand can be seen in Justice Nariman's landmark decision in the Shreya Singhal case in 2015 as well.

While striking down the controversial Section 66A of the Information Technology Act, he held that state action should conform to norms which are rational, informed with reasons and guided by public interest.

This is an important step towards ensuring vague laws aren't used to restrict people's freedom of speech.

"The test of manifest arbitrariness would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary – done with reason or rationality and out of personal will."

Justice Rohinton Nariman

Government Is Duty Bound To Implement Court's Rulings

Justice Nariman never ceased to remind the government that ensuring implementation of court orders is its constitutional obligation. Politically charged cases cannot be an excuse for the Executive to abdicate this duty.

He explained this principle while dissenting from the majority judgment that referred the review of the Sabarimala judgment (in which he had been part of the original decision to declare the discrimination against women devotees unconstitutional) to a larger bench.

"It is the bounden duty of every minister to follow Article 144 in letter and spirit, and to do what is right to all manner of people in accordance with the interpretation of the Constitution declared by the law laid down by the Supreme Court… Any deviation from this high constitutional principle is in derogation of the oath taken by every minister during his term of office."

Justice Rohinton Nariman

While reminding the government that the law laid down by the Supreme Court is binding not only on all the courts but also on all the branches of the executive, Justice Nariman did not mince words in calling out politicising of court's rulings.

"Once this is clearly understood and followed, the rule of law is established, and the shameful spectacle of political parties running after votes or instigating or tolerating mob violence, in defiance of orders passed by the Supreme Court does not reign instead. Organised acts of resistance to thwart the implementation of a judgment must be put down firmly."

Justice Rohinton Nariman

In one of his last judgments for the court, Justice Nariman reaffirmed this commitment to ensuring rulings of the court were strictly complied with.

In a judgment which could act as an important message to politicians, he held 8 political parties guilty of contempt of court for not complying with the court's earlier directions to publish the criminal antecedents of candidates in the recent Bihar elections and to give reasons for putting up candidates with a criminal background.

The same message was echoed in the lauded Navtej Johar decision where the Supreme Court held that LGBTQIA+ have equal rights under the Constitution, and decriminalised consensual homosexual acts. In his opinion in the judgment Justice Nariman also made clear that "fundamental rights do not depend on the outcome of the elections" and the court would not wait for governments to protect these rights.

"These fundamental rights do not depend on the outcome of elections. And it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality... Constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes."

Justice Rohinton Nariman

Accountability & Transparency In Criminal Justice 

Some of the most significant yet not as widely popular judgments of Justice Nariman has come from the criminal roster, even though many may view his work on corporate law and insolvency matters as his lasting legacy.

Justice Nariman's judgments on criminal jurisprudence have attempted to instill and uphold the values of accountability and transparency in the exercise of discretion by various agents of the criminal justice system.

During his tenure, he has passed orders to install CCTV cameras in police stations to prevent custodial torture, set down time limits for political parties to publish information regarding criminal antecedents of candidates, and taken a no-nonsense approach to arbitrary detention of prisoners.

The Munawar Faruqui case was a great example of this. The comedian had been in jail for nearly two months with the lower courts and high court denying him bail, but when the matter came before Justice Nariman, he ordered Faruqui's release within minutes, since under the law, the police should never have arrested him in the first place.

Justice Nariman's judgments on criminal justice therefore, can be seen as attempts to quell the clamour that often surrounds such matters, and privilege the procedural protections that all accused have in law over ambiguous narratives of the authorities.

NRC: A Blot on an Illustrious Judicial Career

Despite his contributions to human rights jurisprudence of this country, Justice Nariman's track record is not unblemished. One of the most glaring blots on that track record is his judgment in the National Register of Citizens (NRC) case in 2014.

It is because of this judgment that the NRC process was initiated in Assam, at the directions of Justices Nariman and Ranjan Gogoi – even though the judges referred the provision of the Citizenship Act that allowed it to a larger bench. The NRC exercise has led to uncertainty and suffering for lakhs of people in Assam, and remains inconclusive even now.

What makes this galling was that the Supreme Court, when ordering the NRC, had not sought any actual data on the problem of illegal immigration in Assam

In 2004, the Union Home Ministry had made a statement before the Parliament giving out the number of allegedly illegal Bangladeshi immigrants in the country – a staggeringly large figure of 50 lakh.

However, a clarification was added to that statement soon after by the Ministry, which stated that the reported figures were not based on any comprehensive or sample study but were based on hearsay and that too from interested parties.

Justice Nariman's judgment, however relied upon and cited the original figure of 50 lakh illegal immigrants, without any reference to the clarification. Therefore, the court's reasoning was based upon a statement which was of dubious value.

Advocate Aman Wadud, also notes the problematic reliance in the judgment of an older Supreme Court case from 2005 in the Sarbananda Sonowal case, which again was primarily based on a communal and xenophobic report of former bureaucrat SK Sinha.

In his report Sinha had said that, "The influx of these illegal migrants is turning these districts into a Muslim majority region. It will then only be a matter of time when a demand for their merger with Bangladesh may be made."

"Firstly, ordering the NRC was wrong, the outcome of the NRC proved why SC was wrong on justifying illegal immigration to Assam...The misplaced and prejudiced narrative of illegal immigration peddled by the SC in the 2014 judgement got punctured by the very NRC process."

Aman Wadud

Senior Lawyers Offer Their Praises

Despite the NRC judgment, most senior lawyers view Justice Rohinton Nariman's tenure as a remarkable one.

Senior advocate Meenakshi Arora told The Quint that Justice Nariman had been a "game changer".

"Justice Nariman moulds are unique and irreplaceable. A combination of a brilliant mind with a deep desire to do justice is a rarity. He will be sorely missed."

Senior advocate Meenakshi Arora

Former President of the Supreme Court Bar Association and senior advocate Dushyant Dave revisited his days of arguing before the Bench of Justice Nariman. Dave said that Justice Nariman had proved himself to be one of the finest Judges in the history of the Supreme Court.

"He has given s strong fillip to the Constitutional ethos and morality in several decisions upholding citizens fundamental rights in a meaningful manner. He has been fair and bold as a judge who only looked at the law and not anything beyond. His conduct was exemplary , very supportive and educative to the Bar especially the young Bar. He stood up for the independence of the Judiciary to the hilt. His legacy will live for long."

Senior Advocate Dushyant Dave

Senior advocate Sanjay Hegde commended Justice Nariman for his refusal to deviate from the strictures and bounds of the law, even in the most politically charged or controversial cases.

"He deeply cared for justice through the route of law. He was a man who saw issues of law and decided according to the law as he saw it. Faces did not matter to him though he could be very easily put off by somebody who was not being candid with the bench."

Senior advocate Sanjay Hegde

Referring to his contributions to insolvency law, a key aspect of commercial law and a tricky one given the teething problems with the new Insolvency and Bankruptcy Code, senior advocate Chander Uday Singh called Justice Nariman, 'a one man army'.

"And as for the Insolvency and Bankruptcy Code, 2016, Justice Nariman was like a one-man army (without in any manner detracting from his sister and brother judges) who ensured that in just five years of its existence, the Act was x-rayed, analysed, taken apart, put back together, and amended time and again to make it workable and effective. Taking up insolvency matters in mission mode, he delivered more path-breaking judgments on this statute in five years, than what might have taken two decades at the glacial speed with which the Court normally approaches such laws."

Senior Advocate Chander Uday Singh