“With Brother Justice Nariman’s retirement, I feel like I am losing one of the lions which guarded this judicial institution. One of the strong pillars of the contemporary judicial system, he is a man of principles and is committed to what is right.”
With these words, CJI Ramana bid adieu to Justice Nariman. These words aptly describe the extent of the contribution Justice Nariman has made in his seven years long tenure as a Supreme Court Judge. Throughout his tenure, he has authored judgments that have contributed to the understanding of fundamental rights of the citizens, insolvency laws, and arbitration laws. Whatever aspect of law he picked, he did complete justice to it. Thus, an ideal way to celebrate and honour this great man’s legacy is through a discussion of his most notable judgments. Given below is a non-exhaustive, year-wise list of his landmark judgments:
Mohd. Arif v. The Registrar, Supreme Court of India (2014) 9 SCC 737
In this case, Justice Nariman, while
authoring the main Judgment for the majority (4:1), expanded the scope of Art. 21 by holding that hearing of cases in
which the death penalty has been awarded should be by a Bench of 3 Judges and
Review Petitions in such cases should not be heard by circulation, rather they
should only be heard in ‘Open Court’. It was held that “when it is a
question of life and death of a person, even a remote chance of deviating from
such a decision while exercising the review jurisdiction, would justify oral
hearing in a review petition.”
Shreya Singhal v. Union of India (2013) 12 SCC 73
In this case, the validity of various provisions of the Information Technology Act, 2000 was in question. In his Judgment, Justice Nariman struck down Sec 66A of the IT act for being violative of Art 19(a) & 14, holding that the provision is vague and undefined, making it arbitrary, excessive, and disproportionate restriction on the freedom of speech. He noted that because the Section targets even protected and innocent speech, it has a “chilling effect” on free speech. However, the section has continued to be in use; despite the Judgment- a fact that was noted by Justice Nariman recently. While hearing a PIL filed by PUCL to implement the Guidelines in Shreya Singhal, he issued notice to States, UTs, and Registrars of HCs.
Justice K.S Puttaswamy v. Union of India (2017) 10 SCC 1
While the credit for recognition of the “Right
to Privacy” as a fundamental right goes to the entire 9-judges bench, Justice
Nariman deserves special credit for specifically referring to the International
Principles on the Application of Human Rights to Communications Surveillance in
his concurring opinion. The Judgment consists of 5 opinions. However, only his opinion paid
attention to this aspect.
Shayara Bano v. Union of India (2017) 9 SCC 1
While this Judgment is responsible for striking down “triple talaq”, equally important is the fact that Justice Nariman in this case revived the Doctrine of Manifest Arbitrariness. The Doctrine is used to determine “whether the enactment is drastically unreasonable and/or capricious, irrational or without adequate determining principle.” The Doctrine can be traced back to several early SC decisions; however, in State of A.P. v. McDowell & Co (1996) 3 SCC 709, the SC had taken a contrary view and held that statues could not be struck down on the ground of arbitrariness unless there is some or other constitutional infirmity present. Justice Nariman in Shayara Bano overruled Mcdowells case for it failed to take note of Ajay Hasia v. Khalid Mujib Sehravardi (1981) and K.R. Lakshmanan (Dr.) v. State of T.N. (1996) 2 SCC 226. He broadened the purview of Art 14 by stating that: “a constitutional infirmity is found in Article 14 itself whenever legislation is “manifestly arbitrary,” i.e. when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favouritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment.” The Doctrine was later utilized by him in Navtej Singh Johar vs. Union of India (2018) 1 SCC 791, Joseph Shine vs. Union of India, AIR 2018 SC 4898 and Hindustan Construction Company Ltd v Union of India.
Joseph Shine vs. Union of India, AIR 2018 SC 4898
While criticizing the proprietary interest that the offence of “Adultery” creates for a married man in his wife, Justice Nariman struck down Sec 497 IPC and Sec 198 Cr.P.C for being violative of Articles 14 15(1), and 21. He called Sec 497 an “Archaic Law” which has “long outlived its purpose and does not square with today‘s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary.”
Navtej Johar v Union of India, (2018) 1 SCC 791
Recognizing the rights of the LGBTQ community, Justice Nariman, in this Judgment, struck down Sec 377 IPC for being “outdated”. He imposed an obligation upon the “Union of India” to take all measures “to ensure that this judgment is given wide publicity through the public media” and “initiate programs to reduce and eliminate the stigma associated with such persons” and run programs to sensitize government officials about LGBTQ issues.
Sabarimala Judgment (2018) and Dissent in Kantaru Rajeevaru v. Indian Young Lawyers Association, (Sabarimala Review, 2019)
He was part of the bench that struck down the Sabarimala Temple’s practice of barring the entry of women as being violative of Art 25. However, more remarkable was his dissent in Kantaru Rajeevaru v. Indian Young Lawyers Association (Sabarimala Review). He held that there was nothing to show that the exclusion of women aged between 10 and 50 is an essential religious practice. He also noted that Article 25 does not give carte blanche to one particular section of persons to trample upon the right of belief and worship of another section. He noted the non-implementation of the Sabarimala Judgment and held that under Art 144, the Executive is obligated to carry out the orders of the SC by stating that “Thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced.” Calling the Constitution the “Holy Book” he observed that “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 it.
Through these judgments, Justice Nariman has clearly contributed to the evolution of fundamental rights, expansion of civil liberties, the promotion of gender equality, and recognition of LGBTQ rights. However, his contributions extend beyond these areas to even IBC and Arbitration Laws.
Ram Babu Singh Thakur v. Sunil Arora (2021)
Authoring the Judgment, Justice Nariman took
note of the rise in the criminalization of politics and directed that all
political parties are required to publish the details of criminal antecedents
of their candidates in the Lok Sabha and Assembly polls along with the reasons
for their selection. The bench observed that candidates must be chosen based on
merits and not winnability. Given the present condition of Indian
politics, these directions were much needed.
Contribution to IBC and Arbitration Law
Justice Nariman has been involved in three of the earliest and most important judgments on IBC: M/s Innoventive Industries Ltd vs ICICI Bank (2018), Mobilox Innovations Pvt. Ltd. v. Kirusa Software Pvt.Ltd, and Committee of Creditors of Essar Steel v. Satish Kumar Gupta (2019). IBC is a very new and emerging area, remains unclear in a lot of ways. These judgments have played a very significant role in clarifying the concepts relating to this law. In M/s Innoventive Industries Ltd vs ICICI Bank, the SC analyzed the major sections of the Code and insulated insolvency proceedings from the test of repugnancy under Art 254. It recognized a paradigm shelf in the Insolvency regime. Following this, the Justice Nariman in Mobilox Innovations Pvt. Ltd. v. Kirusa Software Pvt. Ltd explained the distinction between financial creditors and Operational Creditors. It also clarified the scope of “the existence of Dispute” under Section 8 of the Code. Finally, in Essar Judgment, he relaxed the 330-day time limit under Section 4 of the Code by reading down the word “mandatorily” in the section, thus, allowing Adjudicating Authority to make exceptions in exceptional cases where the failure to adhere to the 330 days period cannot be attributed to the litigant’s faults. In 2021, he upheld the constitutional validity of the IBC amendment 2020 in Manish Kumar v Union of India.
In Kochi Cricket Pvt Ltd v. BCCI (2018), held that Section 36 of the Arbitration Act (which provided that mere filing of appeal would not amount to stay of enforcement proceedings, and stay will only be conditional upon furnishing security if the award relates to payment of money), will apply only to arbitral proceedings commenced on or after October 23, 2015, and arbitration-related court proceedings filed on or after October 23, 2015, even where the arbitral proceedings had been commenced before the amendments came into force. Following this, the 2019 Amendment introduced Sec 87 (which allowed for an automatic stay on enforcement of awards) intending to nullify this Judgment. It was, however, struck down by the Supreme Court Bench, including Justice Nariman in Hindustan Construction Company Ltd v Union of India (2019), struck down the said provision as being “manifestly arbitrary.” He further observed that with the advent of IBC, Sec 87 might lead to the insolvency of arbitral-award holders, as the payments due to them might get blocked. From the above discussion, it is clear that the contribution made by Justice Nariman during his judicial career is tremendous, and his legacy as a Supreme Court judge will inspire generations of legal professionals! Justice Nariman’s tenure will remind everyone that “unless the lamp of liberty burns bright and hard in every citizen’s mind and heart, no basic structure will ever be tampered.”
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“With Brother Justice Nariman’s retirement, I feel like I am losing one of the lions which guarded this judicial institution. One of the strong pillars of the contemporary judicial system, he is a man of principles and is committed to what is right.”
With these words, CJI Ramana bid adieu to Justice Nariman. These words aptly describe the extent of the contribution Justice Nariman has made in his seven years long tenure as a Supreme Court Judge. Throughout his tenure, he has authored judgments that have contributed to the understanding of fundamental rights of the citizens, insolvency laws, and arbitration laws. Whatever aspect of law he picked, he did complete justice to it. Thus, an ideal way to celebrate and honour this great man’s legacy is through a discussion of his most notable judgments. Given below is a non-exhaustive, year-wise list of his landmark judgments:
Mohd. Arif v. The Registrar, Supreme Court of India (2014) 9 SCC 737
In this case, Justice Nariman, while authoring the main Judgment for the majority (4:1), expanded the scope of Art. 21 by holding that hearing of cases in which the death penalty has been awarded should be by a Bench of 3 Judges and Review Petitions in such cases should not be heard by circulation, rather they should only be heard in ‘Open Court’. It was held that “when it is a question of life and death of a person, even a remote chance of deviating from such a decision while exercising the review jurisdiction, would justify oral hearing in a review petition.”
Shreya Singhal v. Union of India (2013) 12 SCC 73
In this case, the validity of various provisions of the Information Technology Act, 2000 was in question. In his Judgment, Justice Nariman struck down Sec 66A of the IT act for being violative of Art 19(a) & 14, holding that the provision is vague and undefined, making it arbitrary, excessive, and disproportionate restriction on the freedom of speech. He noted that because the Section targets even protected and innocent speech, it has a “chilling effect” on free speech. However, the section has continued to be in use; despite the Judgment- a fact that was noted by Justice Nariman recently. While hearing a PIL filed by PUCL to implement the Guidelines in Shreya Singhal, he issued notice to States, UTs, and Registrars of HCs.
Justice K.S Puttaswamy v. Union of India (2017) 10 SCC 1
While the credit for recognition of the “Right to Privacy” as a fundamental right goes to the entire 9-judges bench, Justice Nariman deserves special credit for specifically referring to the International Principles on the Application of Human Rights to Communications Surveillance in his concurring opinion. The Judgment consists of 5 opinions. However, only his opinion paid attention to this aspect.
Shayara Bano v. Union of India (2017) 9 SCC 1
While this Judgment is responsible for striking down “triple talaq”, equally important is the fact that Justice Nariman in this case revived the Doctrine of Manifest Arbitrariness. The Doctrine is used to determine “whether the enactment is drastically unreasonable and/or capricious, irrational or without adequate determining principle.” The Doctrine can be traced back to several early SC decisions; however, in State of A.P. v. McDowell & Co (1996) 3 SCC 709, the SC had taken a contrary view and held that statues could not be struck down on the ground of arbitrariness unless there is some or other constitutional infirmity present. Justice Nariman in Shayara Bano overruled Mcdowells case for it failed to take note of Ajay Hasia v. Khalid Mujib Sehravardi (1981) and K.R. Lakshmanan (Dr.) v. State of T.N. (1996) 2 SCC 226. He broadened the purview of Art 14 by stating that: “a constitutional infirmity is found in Article 14 itself whenever legislation is “manifestly arbitrary,” i.e. when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favouritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment.” The Doctrine was later utilized by him in Navtej Singh Johar vs. Union of India (2018) 1 SCC 791, Joseph Shine vs. Union of India, AIR 2018 SC 4898 and Hindustan Construction Company Ltd v Union of India.
Joseph Shine vs. Union of India, AIR 2018 SC 4898
While criticizing the proprietary interest that the offence of “Adultery” creates for a married man in his wife, Justice Nariman struck down Sec 497 IPC and Sec 198 Cr.P.C for being violative of Articles 14 15(1), and 21. He called Sec 497 an “Archaic Law” which has “long outlived its purpose and does not square with today‘s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary.”
Navtej Johar v Union of India, (2018) 1 SCC 791
Recognizing the rights of the LGBTQ community, Justice Nariman, in this Judgment, struck down Sec 377 IPC for being “outdated”. He imposed an obligation upon the “Union of India” to take all measures “to ensure that this judgment is given wide publicity through the public media” and “initiate programs to reduce and eliminate the stigma associated with such persons” and run programs to sensitize government officials about LGBTQ issues.
Sabarimala Judgment (2018) and Dissent in Kantaru Rajeevaru v. Indian Young Lawyers Association, (Sabarimala Review, 2019)
He was part of the bench that struck down the Sabarimala Temple’s practice of barring the entry of women as being violative of Art 25. However, more remarkable was his dissent in Kantaru Rajeevaru v. Indian Young Lawyers Association (Sabarimala Review). He held that there was nothing to show that the exclusion of women aged between 10 and 50 is an essential religious practice. He also noted that Article 25 does not give carte blanche to one particular section of persons to trample upon the right of belief and worship of another section. He noted the non-implementation of the Sabarimala Judgment and held that under Art 144, the Executive is obligated to carry out the orders of the SC by stating that “Thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced.” Calling the Constitution the “Holy Book” he observed that “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 it.
Through these judgments, Justice Nariman has clearly contributed to the evolution of fundamental rights, expansion of civil liberties, the promotion of gender equality, and recognition of LGBTQ rights. However, his contributions extend beyond these areas to even IBC and Arbitration Laws.
Ram Babu Singh Thakur v. Sunil Arora (2021)
Authoring the Judgment, Justice Nariman took note of the rise in the criminalization of politics and directed that all political parties are required to publish the details of criminal antecedents of their candidates in the Lok Sabha and Assembly polls along with the reasons for their selection. The bench observed that candidates must be chosen based on merits and not winnability. Given the present condition of Indian politics, these directions were much needed.
Contribution to IBC and Arbitration Law
Justice Nariman has been involved in three of the earliest and most important judgments on IBC: M/s Innoventive Industries Ltd vs ICICI Bank (2018), Mobilox Innovations Pvt. Ltd. v. Kirusa Software Pvt.Ltd, and Committee of Creditors of Essar Steel v. Satish Kumar Gupta (2019). IBC is a very new and emerging area, remains unclear in a lot of ways. These judgments have played a very significant role in clarifying the concepts relating to this law. In M/s Innoventive Industries Ltd vs ICICI Bank, the SC analyzed the major sections of the Code and insulated insolvency proceedings from the test of repugnancy under Art 254. It recognized a paradigm shelf in the Insolvency regime. Following this, the Justice Nariman in Mobilox Innovations Pvt. Ltd. v. Kirusa Software Pvt. Ltd explained the distinction between financial creditors and Operational Creditors. It also clarified the scope of “the existence of Dispute” under Section 8 of the Code. Finally, in Essar Judgment, he relaxed the 330-day time limit under Section 4 of the Code by reading down the word “mandatorily” in the section, thus, allowing Adjudicating Authority to make exceptions in exceptional cases where the failure to adhere to the 330 days period cannot be attributed to the litigant’s faults. In 2021, he upheld the constitutional validity of the IBC amendment 2020 in Manish Kumar v Union of India.
In Kochi Cricket Pvt Ltd v. BCCI (2018), held that Section 36 of the Arbitration Act (which provided that mere filing of appeal would not amount to stay of enforcement proceedings, and stay will only be conditional upon furnishing security if the award relates to payment of money), will apply only to arbitral proceedings commenced on or after October 23, 2015, and arbitration-related court proceedings filed on or after October 23, 2015, even where the arbitral proceedings had been commenced before the amendments came into force. Following this, the 2019 Amendment introduced Sec 87 (which allowed for an automatic stay on enforcement of awards) intending to nullify this Judgment. It was, however, struck down by the Supreme Court Bench, including Justice Nariman in Hindustan Construction Company Ltd v Union of India (2019), struck down the said provision as being “manifestly arbitrary.” He further observed that with the advent of IBC, Sec 87 might lead to the insolvency of arbitral-award holders, as the payments due to them might get blocked. From the above discussion, it is clear that the contribution made by Justice Nariman during his judicial career is tremendous, and his legacy as a Supreme Court judge will inspire generations of legal professionals! Justice Nariman’s tenure will remind everyone that “unless the lamp of liberty burns bright and hard in every citizen’s mind and heart, no basic structure will ever be tampered.”
You may follow us on Instagram and Linkedin for daily legal updates.
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