“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, if an individual has autonomy over fundamental personal choices and control over dissemination of personal information which may be infringed through an unauthorised use of such information.”
Justice R.F. Nariman in K.S. Puttaswamy (Privacy-9J.) v. Union of India,(2017) 10 SCC 1
As Hon’ble Justice Rohinton Fali Nariman prepares to call it a day as Supreme Court Judge, we make a humble attempt to recapitulate his extensive and inspiring journey which earned him admiration from all and sundry.
Travelling Back In Time
Justice Nariman was born on 13th August 1956 to eminent jurist Fali Sam Nariman. He received his education from Cathedral School, Mumbai, where he passed the ISC exams with 1st Division. Justice Nariman got his degree in B.Com from Shri Ram College of Commerce and then went on to pursue his LL.B from Delhi University (Faculty of Law) where he ranked 2nd in the batch.[1]
The next step in his legal education was Masters in Law, which he pursued from the prestigious Harvard Law School in 1980-81. For his LL.M thesis, Justice Nariman wrote a dissertation on “Affirmative Action- a comparison between India and US Constitutional Law”[2]
Legal Career [1979- 2014]
As a Counsel
Justice Nariman got enrolled in the Bar in 1979. After obtaining his LL.M degree form Harvard, Justice Nariman practiced Maritime Law in New York at Haight, Gardener, Poor and Havens for 1 year.
In the year 1993, due to Nariman’s ‘magical court craft and obsessive attention to minutest of details and his remarkable grasp of the complicated facts and legal issues involved’[3]; he was designated as a Senior Advocate of the Supreme Court of India when he was just 37 years old.
*Did You Know? The then Chief Justice of India, M.N. Venkatachalaiah, J., amended the Rules as Nariman was of 37 years and the minimum age for being made a senior in the Supreme Court was 45 years.[4]
Justice Nariman possessed expertise in cases related to Comparative Constitutional Law and Civil Law; however his resume as a counsel is a versatile one and has argued in numerous Constitution Bench cases. Some of the prominent cases during Nariman’s tenure as an advocate are as follows
Prominent Cases where R.F. Nariman appeared as a Counsel
LIC v. Escorts Ltd., (1986) 1 SCC 264 – Case concerning S. 29(1) of Foreign Exchange Regulation Act, 1973.
Express Hotels (P) Ltd. v. State of Gujarat, (1989) 3 SCC 677 – Case regarding constitutional validity of legislations of different States viz. State of Gujarat, State of Tamil Nadu, State of Karnataka and State of West Bengal, imposing a tax on “Luxuries” under Entry 62 of List II of the Seventh Schedule to the Constitution of India.
Sodan Singh v. New Delhi Municipal Committee, (1989) 4 SCC 155 – Case regarding the right of pavement hawkers to carry on trade on road pavements under Art. 19(1)(g) of the Constitution.
India Cement Ltd. v. State of T.N., (1990) 1 SCC 12 – Case regarding royalty payable on extraction of mineral
Synthetics and Chemicals Ltd. v. State of U.P., (1990) 1 SCC 109 – Case regarding constitutional validity of levies imposed on industrial alcohol.
Workmen v. Meenakshi Mills Ltd., (1992) 3 SCC 336 – Case regarding restrictions on employer’s right to retrench workmen.
Raghunathrao Ganpatrao v. Union of India, 1994 Supp (1) SCC 191– Constitutionality of abolishing privy purses, privileges and dignities of erstwhile Rulers of Indian States by deletion of Arts. 291 and 362; insertion of Art. 363-A and substitution of Art. 366(22) of the Constitution.
H.R. Adyanthaya v. Sandoz (India) Ltd., (1994) 5 SCC 737 – Case regarding whether “workmen” as defined in S. 2(s) of the Industrial Disputes Act, 1947 covers medical representatives.
Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574 – The case where it was held that, a citizen has no fundamental right to trade or business in liquor as a beverage.
Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 – Case regarding customs duty levied on erroneous interpretation of statutory provisions or under mistake of law.
Saurabh Chaudri v. Union of India, (2003) 11 SCC 146 – Case regarding the constitutionality of reservation in government run medical colleges based on domicile.
State of Punjab v. Devans Modern Breweries Ltd., (2004) 11 SCC 26 – Case regarding the nature of trade/ business in intoxicating liquor.
P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537 – Case regarding unaided (minority and non- minority) institutions imparting professional education.
Khoday Distilleries Ltd. v. Scotch Whisky Assn., (2008) 10 SCC 723 – Case related to the nature of a Registrar’s power under S. 56 of Trade and Merchandise Marks Act, 1958 to rectify the register; and tests to determine the likelihood of confusion and deception.
Solicitor General of India
Justice Nariman was appointed[5] as the Solicitor General of India by the Indian Government on 27th July, 2011. However, after tenure of 18 months, Nariman resigned from the post. In this duration of 18 months, Nariman, in his capacity as the Solicitor General, appeared in the following important cases-
Vodafone International Holdings BV v. Union of India, (2012) 6 SCC 613 – Case regarding taxation of offshore transactions and the need for certainty in law to encourage FDI.
Ramlila Maidan Incident, In re, (2012) 5 SCC 1 – Case regarding proper and permissible response of State and Police vis-à-vis peaceful public meetings or demonstrations.
Ratnagiri Gas and Power (P) Ltd. v. RDS Projects Ltd., (2013) 1 SCC 524 – Case regarding vitiation of government tender processes due to arbitrariness.
State of Gujarat v. R.A. Mehta, (2013) 3 SCC 1 – Case regarding primacy of the opinion of the Chief Justice of High Court while appointing a Lokayukta under Gujarat Lokayukta Act, 1986.
*Did You Know? In his 35 years of practice, Justice Nariman has more than 500 reported Supreme Court Judgments to his credit.[6]
As Judge of the Supreme Court [2014 – 2021]
Given his stellar track record as a counsel, it was not a surprise when Justice Nariman was elevated as a Judge of the Supreme Court of India, on 7th July 2014[7]. During his tenure, Justice Nariman was also appointed as Chairman of the Supreme Court Legal Services Committee.
*Did You Know? In 2014, Nariman became the 5th person to be directly elevated from the Bar to be a Judge of the Supreme Court.[8]
Very much like this time as an advocate, Justice Nariman in his 7 year tenure as a Supreme Court Judge was not only a part of, but also wrote a number of landmark decisions that had a profound effect on the development of law. Some of the significant decisions by Justice Nariman are as follows-
Significant Decisions
Gemini Bay Transcription Pvt. Ltd v. Integrated Sales Service Ltd, 2021 SCC OnLine SC 572
A Division Bench comprising of R.F. Nariman and B.R. Gavai, JJ. held that a foreign arbitral award is enforceable against non-signatories to arbitration agreement. The Supreme Court reiterated that grounds for resisting a foreign arbitral award contained in Section 48(1)(a) to (e) of the Arbitration and Conciliation Act, 1996 are to be narrowly construed, and that a non-signatory’s objection cannot possibly fit into Section 48(1)(a). Furthermore, a foreign arbitral award cannot be challenged on the ground of “perversity”. Read More
Amazon.com NV Investment Holdings LLC v. Future Retail Limited, 2021 SCC OnLine SC 557
Holding that an award passed by Emergency Arbitrator is enforceable under the Arbitration and Conciliation Act, 1996, a Division Bench of R.F. Nariman and B.R. Gavai, JJ., ruled in favour of Amazon in the infamous Future-Amazon dispute. It was held that the interim award in favour of Amazon, passed by the Emergency Arbitrator appointed under the Arbitration Rules of the Singapore International Arbitration Centre is enforceable under the Indian Arbitration Act. The Court declared that full party autonomy is given by the Arbitration Act to have a dispute decided in accordance with institutional rules which can include Emergency Arbitrators delivering interim orders. Read More
Neeraj Garg v. Sarita Rani, 2021 SCC OnLine SC 527
The Division Bench of R.F. Nariman and Hrishikesh Roy, JJ., directed that adverse comments recorded against the appellant─advocate in certain judgments of the Uttaranchal High Court be recalled. The Supreme Court found that the offending remarks were unnecessary for deciding the disputes and appeared to be based on personal perception of the Presiding Judge. The requisite degree of restraint and sobriety expected in such situations was also found missing in the offending remarks. Read More
Union of India v. Rajendra N. Shah, 2021 SCC OnLine SC 474
A 3-Judge Bench of the Court held that the Constitution (97th Amendment) Act, 2011 which inter alia inserted Part IX-B is ultra vires the Constitution insofar it is concerned with the subject of Cooperative Societies for want of the requisite ratification under Article 368(2) proviso. At the same time, the Court by a majority of 2:1, followed doctrine of severability in declaring that Part IX-B is operative insofar as it concerns Multi-State Cooperative Societies both within various States and in Union Territories. R.F. Nariman and B.R. Gavai, JJ., formed the majority, whereas K.M. Joseph, J. penned a separate opinion dissenting partly with the majority. He expressed inability to concur with the view on the application of doctrine of severability. Read More
Amway India Enterprises Pvt. Ltd v. Ravindranath Rao Sindhia, 2021 SCC OnLine SC 171
The Division Bench of R.F. Nariman and B.R. Gavai, JJ., addressed an important case regarding nature of arbitration under Arbitration and Conciliation Act, 1996. The Bench ruled, if at least one of the parties was either a foreign national, or habitually resident in any country other than India; or by a body corporate which was incorporated in any country other than India; or by the Government of a foreign country, the arbitration would become an international commercial arbitration notwithstanding the fact that the individual, body corporate, or government of a foreign country carry on business in India through a business office in India. Read More
PSA SICAL Terminals (P) Ltd. v. V.O. Chidambranar Port Trust, 2021 SCC OnLine SC 508
Division Bench comprising of R.F. Nariman and B.R. Gavai, JJ. held that an arbitral award which is based on no evidence and/or in ignorance of evidence would come under the realm of patent illegality. The Court also held that an arbitrator cannot rewrite the contract for the parties. Read More
Navinchandra Steels (P) Ltd. v. Srei Equipment Finance Ltd., (2021) 4 SCC 435
The Division Bench of Rohinton Fali Nariman and B.R. Gavai, JJ., addressed the instant appeal involving the question that whether an insolvency proceedings could be initiated after the winding up application had been admitted under the Companies Act. The Bench stated, that,“…every effort should be made to resuscitate the corporate debtor in the larger public interest, which includes not only the workmen of the corporate debtor, but also its creditors and the goods it produces in the larger interest of the economy of the country.” Read More
Manish Kumar v. Union of India, (2021) 5 SCC 1
The 3-Judge Bench of Rohinton Fali Nariman, Navin Sinha and K.M. Joseph, JJ., in a 465-pages long judgment, upheld the validity of several provisions of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, albeit with directions given in exercise of powers under Article 142 of the Constitution of India. While so upholding the impugned amendments, the Bench expressed an observation that, “There is nothing like a perfect law and as with all human institutions, there are bound to be imperfections. What is significant is however for the court ruling on constitutionality, the law must present a clear departure from constitutional limits.” Read More
Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17
The bench of RF Nariman and Navin Sinha, JJ has, in a landmark verdict, upheld the validity of the Insolvency and Bankruptcy Code, 2016 in it’s entirety as the provisions contained therein pass the constitutional muster. Noticing that in the working of the Code, the flow of financial resource to the commercial sector in India has increased exponentially as a result of financial debts being repaid, the bench said: “The defaulter‘s paradise is lost. In its place, the economy‘s rightful position has been regained.” Read More
K.S. Puttaswamy v. Union of India (Privacy- 9 Judge), (2017) 10 SCC 1
Dr. Justice D.Y. Chandrachud was part of the 9 Judge Bench which unanimously held that, Right to Privacy is a basic fundamental right. The Bench, which also comprised of J.S. Khehar, CJ. and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, S.K. Kaul and S.A. Nazeer, JJ., observed that Right to Privacy forms an intrinsic part of Art. 21 and freedoms guaranteed in Pt. III. It permeates core of Preambular philosophy underlying “liberty” and “dignity” as also human concepts of “life” and “personal liberty” enshrined in Art. 21 and wide ranging freedoms guaranteed under Pt. III, considered essential for a meaningful human existence. Read more
Shreya Singhal v. Union of India, (2015) 5 SCC 1
The Bench of J. Chelameswar and R.F. Nariman, JJ., struck down the Section 66A of the Information Technology Act, 2000 in its entirety for being violative of Article 19(1)(a) and not saved under Article 19(2) of the Constitution. Testing the validity of the Section on the touchstone of the clear and present danger test or the tendency to create public disorder, it was held that Section 66A would not pass muster as it has no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it creates. The judgment was authored by Justice Nariman. The Judges observed that several terms in the impugned law were “open-ended, undefined and vague” which made them nebulous in nature- “What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another.” Read more
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
In this landmark 5 -Judge Bench decision which became instrumental in upholding the rights of the LGBT community, Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., held Section 377 IPC to be unconstitutional insofar it criminalised gay sex between consenting adults. The Bench reversed the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1. Read more
Joseph Shine v. Union of India, (2019) 3 SCC 39
The 5-Judge Constitution Bench held Section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. Dipak Misra, C.J., delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., each delivered their separate concurring opinions. Read more
Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396
The 5-Judge Constitution Bench comprising of CJ Dipak Misra and Kurian Joseph, R.F. Nariman, Sanjay Kishan Kaul and Indu Malhotra, JJ., disposed of a batch of petitions holding that the judgment in M. Nagaraj v. Union of India, (2006) 8 SCC 212 does not need to be referred to a 7-Judge Bench. However, the conclusion in Nagaraj that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes, being contrary to the 9-Judge Bench in Indra Sawhney v. Union of India, 1992 Supp (3) 217 was held to be invalid to this extent. The court held that applying creamy layer principle to SC/ST not invalid and collection of quantifiable data to show backwardness not allowed. Read more
Indian Young Lawyers Assn. v. State of Kerala, (2019) 11 SCC 1
A 5-Judge Constitution Bench, by a majority of 4:1, held not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple is unconstitutional. The judgment of the Court was delivered by CJ Dipak Misra for himself and A.M. Khanwilkar, J. While, R.F. Nariman and Dr D.Y. Chandrachud each gave separate concurring opinions. The only lady Judge on the Bench, Indu Malhotra, J. rendered a dissenting opinion. Read more
Shayara Bano v. Union of India, (2017) 9 SCC 1
A 5-judge Bench of the Supreme Court has held by 3:2 majority that the practice of Triple Talaq is unconstitutional and violative of Articles 14 and 15 of the Constitution. The decision was rendered by the Bench comprising of J.S. Khehar, CJI along with Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit and Abdul Nazeer, JJ. While Nariman and Lalit, JJ. held that Triple Talaq is unconstitutional and violative of Article 14, Justice Joseph struck down the practice on the ground that it goes against Shariat and the basic tenets of the Quran. Read more
Indira Jaising v. Supreme Court of India, (2017) 9 SCC 766
The 3-judge bench of Ranjan Gogoi, RF Nariman and Navin Sinha, JJ laid down elaborate guidelines for the system of designation of Senior Advocates in the Supreme Court as well as all the High Courts of India. The Court said: “The sole yardstick by which we propose to introduce a set of guidelines to govern the matter is the need for maximum objectivity in the process so as to ensure that it is only and only the most deserving and the very best who would be bestowed the honour and dignity. The credentials of every advocate who seeks to be designated as a Senior Advocate or whom the Full Court suo motu decides to confer the honour must be subject to an utmost strict process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter.” Read more
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1
In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the 3-judge bench of RF Nariman, S. Ravindra Bhat and V. Ramasubramanian, JJ has held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in by the 3-judge bench in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and incorrectly “clarified” by a division bench in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. Read more
Public Interest Foundation v. Union of India, (2019) 3 SCC 224
The 5-Judge Constitution Bench comprising of Dipak Misra, C.J., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., the Court issued certain directions while disposing the petition concerning the question whether disqualification from the membership of the legislature could be laid down by the Court beyond Article 102 (a) to (d) and the law made by the Parliament under Article 102 (e) of the Constitution. The Supreme Court, at the outset, perused Articles 102 and 191 of the Constitution and observed it to be clear as crystal that as regards the disqualification for being chosen as a member of either House of Parliament and similarly for a legislative assembly or legislative council of a State, the law has to be made by the Parliament. On the issue of criminalisation of politics, the Court observed that Election Commission has the plenary power and its view has to be given weightage. That apart, it has power to supervise the conduct of free and fair election. However, the said power has its limitations. The Election Commission has to act in conformity with the law made by the Parliament and it cannot transgress the same. Read More
Mohd. Arif v. Registrar, Supreme Court of India, (2014) 9 SCC 737
The Bench of R.M. Lodha, CJ., and JS Khehar, J Chelameshwar, AK Sikri and RF Nariman, JJ., observed that the fundamental right to life under Art. 21 of the constitution, mandates that review of death sentence should be in open court and not by circulation. It was further observed that the time limit for oral reviews of death sentence cases should be limited to 30 minutes.
Membership of Various Trusts, Delegations and Committees and Lectures[9]
- Justice Nariman set up the Supreme Court Lawyers Welfare Trust which works for the welfare of lawyers and encourages young talent.
- Justice Nariman is a Member of the Mediation Committee of the Supreme Court of India.
- Justice Nariman is on the Governing Board of Gujarat Law School.
- Justice Nariman was a Member of the Delegation from the Supreme Court of India to the Supreme Court of the United States of America, 2002.
- Lectured at the Bar Council of India, Supreme Court of India and the University of Delhi.
Tryst with Spirituality and Religion
*Did You Know? Justice Nariman is an ordained Parsi priest (from Bandra Agiary) and adept at performing marriages and the Navjote ceremony (initiation ceremony)[10]
Justice Nariman is known not only for his legal acumen, but he is also keenly interested in religion, spirituality and philosophy. He has specialization in Comparative Religious Studies and held fortnightly Gatha classes for two years in Delhi[11]. In November 2016, Nariman’s book on the Zoroastrian religion, “The Inner Fire- Faith Choice and Modern Day Living in Zoroastrianism” was released. The book is a translation and analysis of the Gathas[12].
Beside this, Justice Nariman has also delivered several lectures of import on religion and law, philosophy and spirituality-[13]
- Justice Nariman delivered a keynote address at the K.L. Misra Lecture on Spirituality and Law along with the Chief Justice of India and other Supreme Court Judges in Allahabad in 2004.
- Lectured in New York to the Zoroastrian Federation.
- Gave the SEARCH lecture at the IIC, Delhi.
- Gave religious talks at Philadelphia in 2005.
- Gave two lectures in Ahmedabad at the invitation of the Ahmedabad Parsi Panchayat in 2003.
- Delivered the Annual K.R. Cama Lecture at K.R. Cama Institute, Mumbai on “Through the Looking Glass- Zoroastrianism in Other Faiths” on 11.11.2006
Miscellaneous Interests[14]
Besides law and religion, Justice Nariman has an avid enthusiasm for history, philosophy, literature and science and also enjoys nature walks and is a committed daily walker. He also has an ardent passion for Western Classical Music and gave a talk at IIC Delhi 2007 on Beethoven.
Legacy
Justice R.F. Nariman is one those legal luminaries who has earned the respect of due to his habit of being meticulous and to the point during his years as an advocate, a habit that he carried well during his time as a Supreme Court Judge. He did not restrict his intellect only in the study and development of law, but also devoted equal time and mind in understanding the various aspects of religion, philosophy and music among others- he indeed is a man of many talents.
Justice Nariman’s career and achievements have inspired the young advocates practicing in the Supreme Court. Known amongst the legal fraternity as a Judge who always valued and upheld the constitutional and human rights of an individual[15]; Justice Nariman’s legacy will definitely be cherished and will serve as an encouragement for all.
†Editorial Assistant, EBC Publishing Pvt. Ltd.
[1] Supreme Court Observer, RF Nariman
[2] Supreme Court of India, Chief Justices and Judges
[3] Tax Sutra, Men Who Matter, R.F. Nariman
[4] Supreme Court of India, Chief Justices and Judges
[5] Ministry of Law and Justice, RF Nariman appointed as Solicitor General
[6] Supreme Court/ High Court Annual Report 2018-19
[7] Supreme Court of India, Chief Justices and Judges
[8] Supreme Court Observer, RF Nariman
[9] Supreme Court of India, Chief Justices and Judges
[10] The Print, Rohinton Nariman
[11] Refer Fn. 9
[12] Financial Express, Justice Nariman Book Launch
[13] Supreme Court of India, Chief Justices and Judges
[14] Refer Fn. 13
[15] The Print, Rohinton Nariman
