Justice Rohinton Nariman's Legacy: Notable Judgments On Liberties, Orientation To IBC & Arbitration

Aaratrika Bhaumik

12 Aug 2021 1:39 PM GMT

  • Justice Rohinton Narimans Legacy: Notable Judgments On Liberties, Orientation To IBC & Arbitration

    Justice Rohinton Nariman's seven year old tenure as a judge of the Supreme Court has come to an end on August 12. He was appointed as a judge of the Supreme Court on July 7, 2014, only the fifth senior counsel to be elevated from the bar to the bench. During his tenure, Justice Nariman has authored notable judgments that have contributed to the country's evolving jurisprudence on...

    Justice Rohinton Nariman's seven year old tenure as a judge of the Supreme Court has come to an end on August 12. He was appointed as a judge of the Supreme Court on July 7, 2014, only the fifth senior counsel to be elevated from the bar to the bench.

    During his tenure, Justice Nariman has authored notable judgments that have contributed to the country's evolving jurisprudence on the fundamental rights and liberties of citizens. Justice Nariman was also part of the bench which steered the controversial NRC process in Assam and operationalized Foreigners Tribunals there, which resulted in casting a shadow on the citizenship of millions of Assam inhabitants and detention of many of them on being adjudged as 'illegal migrants'. Also, he was part of the bench which passed the order in the controversial suo motu case to probe the alleged "larger conspiracy" behind the sexual harassment allegations against the then CJI Ranjan Gogoi.

    Justice Nariman deserves credit for settling several ambiguities in the new field of insolvency law and giving the right orientation to the arbitration law. He has also passed orders to ensure decriminalization of politics, by requiring political parties to mandatorily publish complete criminal antecedents of candidates. It was his judgment which revived the criminal conspiracy charges against BJP leaders LK Advani, Uma Bharati, Kalyan Singh etc., in the Babri Masjid demolition case. The bench led by him set a time-line for the trial in the Babri Masjid demolition conspiracy case, which ultimately ended in the acquittal of all accused in September last year.

    Here is a list (not exhaustive) of some of the notable judgments of Justice Nariman.

    Judgments on fundamental rights

    Review petitions in death penalty cases must be heard in Open Court

    In 2014, Justice Nariman authored the judgment for the majority of the Constitution Bench that had delivered the landmark decision of Mohd. Arif v. The Registrar, Supreme Court which held the open court hearing was mandatory in review petitions against death sentences and that they should be heard by a bench of three judges.

    "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", Justice Nariman had observed. 

    Unconstitutionality of Section 66A of the IT Act, 2000 

    Justice Nariman's 2015 judgment in the case Shreya Singhal v. Union of India declared Section 66A of the Information Technology Act, 2000 to be unconstitutional and in violation of Article 19(1)(a) of the Constitution of India. The judgment stated that several terms in the provision were "open-ended, undefined and vague" which made them nebulous in nature. 

    "It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right", Justice Nariman observed in the judgment.

    "The Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth", the judgment added.

    However, the same judgment repelled the challenge against Section 69 IT Act, which authorizes enryption and intercpetion of electronic communication.

    Recently, on July 5, 2021 Justice Nariman expressed shock on noting that the police authorities were still registering FIRs under Section 66A of the Information Technology Act, 2000 despite the 2015 judgment and notice was issued to the Union, States and Registrar of High Courts.

    Fundamental right to privacy 

    Justice Nariman was a part of the 9 judge Constitution Bench which had delivered the historic Justice K.S Puttaswamy v. Union of India judgment on August 24, 2017 which unanimously recognised that the right to privacy is a fundamental right guaranteed under Article 21 of the Constitution and had subsequently overruled the decisions in M.P. Sharma and Kharak Singh cases.

    "The Preamble of the Constitution, which can be said to reflect core constitutional values. The core value of the nation being democratic would be hollow unless persons in a democracy are able to develop fully in order to make informed choices for themselves which affect their daily lives and their choice of how they are to be governed", Justice Nariman had observed while upholding the fundamental right to privacy.

     Decriminalisation of Adultery 

    He was also a part of the 5 judge Bench which had in September 27, 2018 unanimously struck down Section 497 of the Indian Penal Code (IPC), thereby decriminalising adultery. Justice Nariman in his concurring judgment in Joseph Shine v. Union of India had declared Section 497 of the IPC and Section 198 of the Code of Criminal Procedure, 1973 (CrPC) to be in violation of Articles 14, 15(1), and 21 of the Constitution of India.

    Opining that such criminalisation of adultery degrades the agency and status of a woman, Justice Nariman had passionately observed,

    "The real heart of this archaic law discloses itself when consent or connivance of the married woman's husband is obtained – the married or unmarried man who has sexual intercourse with such a woman, does not then commit the offence of adultery. This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the chattel by the "licensor", namely, the husband, no offence is committed. Consequently, the wife who has committed adultery is not the subject matter of the offence, and cannot, for the reason that she is regarded only as chattel, even be punished as an abettor. This is also for the chauvinistic reason that the third-party male has "seduced" her, she being his victim. What is clear, therefore, is that this archaic law 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, having lost its rationale long ago and having become in today's day and age, utterly irrational"

    Sabrimala verdict

    In 2018, Justice Nariman was a part of the 5 judge Bench that vide a 4:1 majority had held that the Sabrimala Temple's practice of barring the entry of women is unconstitutional and in violation of the fundamental right to freedom of religion as guaranteed under Article 25(1) of the Constitution (Indian Young Lawyers' Association v. State of Kerala). He observed that the majority of a religious group cannot violate the right to worship of an individual believer on the ground of gender.

    Dissent in Sabrimala Review verdict 

    Consequently in November 2019, Justice Nariman along with Justice D.Y Chandrachud had delivered their dissenting judgement against the Sabrimala Review (Kantaru Rajeevaru v. Indian Young Lawyers Association and Ors) wherein strong observations were made against the non-compliance of the Supreme Court's original decision in the case. Justice Nariman had emphasised that while the citizenry was constitutionally empowered to express bona fide critcisim of a judgement, it was not permissible to 'thwart' or 'encourage persons to thwart' the directions or orders of the highest Court.

    'Let every person remember that the 'holy book' is the Constitution of India and 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 this 'Magna Carta' or 'Great Charter of India'', Justice Nariman had observed in his dissenting judgement.

    Unconstitutionality of Triple Talaq

    In 2017, Justice Nariman was a part of the Constitution Bench that had vide a 3:2 majority held that the practice of instant Triple Talaq (talaq-e-bidat) is unconstitutional and violative of Articles 14 and 15 of the Constitution (Shayara Bano v. Union of India). Justice Nariman along with Justice U.U Lalit had authored the majority judgment which had observed that the practice of triple talaq as regulated by the Muslim Personal Law (Shariat) Application Act, 1937 is unconstitutional because it is 'manifestly arbitrary' in nature. He had observed that a provision of law would be 'manifestly arbitrary if it lacked a clear determinative principle or encapsulated a capricious or irrational measure'. 

    Agreeing with the majority, he had held "Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place… This being the case, it is clear that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India"

    Section 377 verdict

    Granting equal protection to the members of the LGBTQ community, Justice Nariman in the landmark decision of Navtej Singh Johar v. Union of India had partially struck down Section 377 of the Indian Penal Code (IPC), which made "carnal intercourse against the order of nature" a criminal offence. He had opined that rationale behind Section 377 was to impose a Victorian sense of morality which 'has long gone'. Notably, he imposed an obligation on the Union of India to take all measures to publicize the judgment so as to eliminate the stigma faced by the LGBT community in society. He also directed government and police officials to be sensitized to the plight of the community so as to ensure favorable treatment for them. 

    Judgments in IBC, Arbitration

    Justice Nariman had also delivered some very important judgments pertaining to the Arbitration Act and Conciliation Act, 1996 and the Insolvency and Bankruptcy Code, 2016 (IBC, 2016).

    First SC judgment on IBC

    In 2016, a bench headed by Justice Nariman delivered the first Supreme Court judgment on IBC in the case M/s Innoventive Industries Ltd vs ICICI Bank and others, comprehensively explaining many of its concepts and provisions. This was soon followed by his judgment in the case Mobilox Innovations Pvt.Ltd. v.Kirusa Software Pvt.Ltd, which explained the scope of "existence of debt" and distinctions between "operational creditors" and "financial creditors".

    Reading Down of the mandatory 330 day period under Section 4 of IBC, 2016 

    In 2019, Justice Nariman in Committee of Creditors of Essar Steel v. Satish Kumar Gupta had read down Section 4 of the IBC, 2016  which provided for a mandatory timeline of 330 days within which the Corporate Insolvency Resolution Process (CIRP) needed to be completed. Justice Nariman had read down such a provision by striking down the word 'mandatorily' before the stated timeline to ensure its constitutional validity. Thus, the Adjudicating Authoirty was permitted to provide exemptions in exceptional cases where the failure to adhere to the 330 days period could not be attributed to any fault of the concerned litigants. 

    Unconstitutionality of Section 87 of the Arbitration and Conciliation Act, 1996 

    In November 2019, Justice Nariman along with his brother judges in the case of Hindustan Construction Company Ltd v. Union of India had struck down Section 87 of the Arbitration and Conciliation Act, 1996, which was inserted through the 2019 Amendment Act. It was opined that the provision which allowed for an automatic stay on enforcement of awards is 'manifestly arbitrary" and violative of Article 14 of the Constitution of India. The provision sought to nullify the effect of 2018 judgment of Justice Nariman in BCCI v Kochi Cricket Private Ltd case which decided the prospective application of automatic stay provision in the Act.

    During the hearing of the case, Justice Nariman had remarked that the 2019 amendment was a retrogade step which will prevent India from becoming a hub of international arbitration.

    There Are Glaring Loopholes In The 2019 Arbitration Amendment Act : Justice Nariman

    Treating homebuyers as financial creditors not arbitrary

    In August 2019, a bench led by Justice Nariman upheld the amendments made to the Insolvency and Bankruptcy Code in 2018 to treat homebuyers as financial creditors (Pioneer Urban Land and Infrastructure Ltd and Anr vs Union of India)

    Constitutional validity of Insolvency and Bankruptcy Code (Amendment) Act 2020

    In January 2021 a Bench comprising Justice Nariman and Justices Navin Sinha and KM Joseph had upheld the constitutional validity of Sections 3, 4 and 10 of the Insolvency and Bankruptcy Code (Amendment) Act 2020, which introduced additional conditions for homebuyers to initiate insolvency process (Manish Kumar v Union of India and others).

    Moratorium under Section 14 IBC covers Section 138 NI Act proceedings against Corporate Debtor for cheque dishonour

    Justice Nariman along with Justices Navin Sinha and KM Joseph had ruled in March 2021 that the declaration of moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016 covers criminal proceedings for dishonour of cheque under Section 138 of the Negotiable Instruments Act (NI Act) against the corporate debtor. The judgment was delivered on a batch of petitions (P Mohanraj and others v. M/s Shah Brothers Ispat Ltd and Ors ) which challenged the continuation of criminal trial under Section 138 NI Act during the pendency of liquidation proceedings in the National Company Law Tribunal (NCLT). 

    Section 138 NI Act A 'Civil Sheep' In A 'Criminal Wolf's Clothing'; Quasi-Criminal In Nature : Supreme Court

    Recognition of Emergency Award- Amazon- Future Retail Dispute

    In the multi-crore Amazon-Future Retail Ltd dispute, Justice Nariman's judgment accorded recognition to the enforcement of emergency arbitration awards under Indian law.
    Limitation for appeal under Section 37 Arbitration Act.
    A recent judgment of Justice Nariman overruled a 2019 verdict which had strictly held that a delay of more than 120 days in filing of appeals under Section 37 of the Arbitration and Conciliation Act 1996 cannot be condoned. His judgment held that delay beyond 90, 60 or 30 days for filing appeals under Section 37, depending on the forum, can be condoned.
    Balance sheet entries amount to acknowledgment of debt
    Setting aside an NCLAT verdict, a judgment delivered by Justice Nariman held that entries in balance sheets can amount to acknowledgement of debt for the purpose of extending limitation under Section 18 of the Limitation Act.

    Revival of the doctrine of manifest arbitrariness 

    As is evident from the aforementioned judgments, Justice Nariman can also be credited for reviving the doctrine of manifest arbitrariness to strike down a number of enactments for being violative of Article 14 of the Constitution. In Shayara Bano v. Union of India Justice Nariman had observed, 

    "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 391 legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14".

    The doctrine of "manifest arbitrariness" was used by him to strike down Section 87 of the Arbitration Act in the case Hindustan Construction Company Ltd v. Union of India

    Speaker must decide on a plea of disqualification under Tenth Schedule within 3 months 

    On January 21, 2020 Justice Nariman along with Justices Aniruddha Bose and V. Ramasubramanian had held that the Speaker of the Legislative Assembly must decide on a petition seeking disqualification of a member under the Tenth Schedule of the Constitution within a period of 3 months in the absence of exceptional reasons. The Bench had also acknowledged the problem of Speakers acting in a partisan manner owing to their respective political loyalities and accordingly recommended that the Parliament should amend the Constitution to provide for an independent mechanism such as a Permanent Tribunal headed by retired judges, to adjudicate disputes under the Tenth Schedule. (Keisham Meghachandra Singh v. Speaker

    Magistrate can order further investigation under Section 156(3) CrPC even at a post-cognisance stage, 43 year old precedent overruled

    Justice Nariman in September 2019 had ruled that a Magistrate can invoke powers conferred under Section 156(3) of the Code of Criminal Procedure, 1973 (CrPC) and order further investigation into an offence even at the post-cognisance stage and accordingly proceeded to overrule a 43 year old precedent of the Gujarat High Court in the judgment of Devarapalli Lakshminarayana Reddy v. Narayana Reddy. The 3 judge Bench had observed that the impugned judgment had failed to take into consideration the definition of 'investigation' under Section 2(h) of the CrPC (Vinubhai Haribhai Malaviya and Ors. v. State of Gujarat).  

    Confessional statements made to NDPS officials not admissible in evidence

    In Tofan Singh v. State of Tamil Nadua 3-judge bench led by Jusice Nariman settled that confessional statements made to investigative officers under the NDPS Act are inadmissible in evidence.

    CCTV Cameras must be installed in Every Police Station 

    Justice Nariman in December 2020 had directed all the State and Union Territory Governments to ensure that CCTV cameras are installed in each and every Police Station functioning under them. The Central Government had also been ordered to install CCTV cameras and recording equipment in the offices of central agencies like CBI, NIA etc. Opining that these directions were in furtherance of of the fundamental right guaranteed under Article 21 of the Constitution, the Bench led by Justice Nariman had set up a strict 6 weeks timeline to ensure compliance. (Paramvir Singh v. Baljit Singh)

    Comedian Munawar Faruqui granted ad-interim bail 

    Earlier this year, stand-up comedian Munawar Faruqui had been arrested in Indore on a complaint filed by the conevor of a local outfit for allegedly making indecent remarks against Hindu deities and the Union Home Minister. The Madhya Pradesh High Court had refused to grant him bail owing to which a special leave petition (SLP) had been filed in the Supreme Court. In February 2021, the Bench comprising Justice Nariman and Justice BR Gavai granted ad-interim bail to Faruqui after noting that the arrest had been made in violation of Section 41A of the Code of Criminal Procedure.

    "The learned counsel has pointed out to us that quite apart from the fact that the allegations made in the FIR are vague that the procedure contained in Section 41 Cr.P.C. as adumbrated by our Judgment in "Arnesh Kumar Vs. State of Bihar & Anr."reported in (2014) 8 SCC 273, has not been followed before arresting the petitioner.This being the case, we issue notice in both the petitions, and stay the Judgment of the High Court", the Bench had observed. 

    Uttar Pradesh government restrained from conducting Kanwar Yatra amidst Covid-19 pandemic 

    Recently, Justice Nariman's bench took suo motu cognizance of the news reports about the UP Government move to allow Kanwar Yatra pilgrimage amidst the second wave of COVID. The bench observed that religious sentiments were subservient to the right to health and right to life. Following the strong observations of the bench, the UP Government revoked its decision.  Later in the same suo motu proceedings, Justice Nariman criticized the Kerala Government for relaxing COVID norms ahead of Barka-Eid, and stated that if any untoward spread of infections happen due to the said decision of the government, the authorities will be held accountable.

    Political parties must publish criminal antecedents of candidates within 48 hours

    With the objective of decriminalisation of politics, last Tuesday Justice Nariman along with Justice B.R Gavai directed political parties to publish the criminal antecedents of candidates on the homepage of their websites within 48 hours of their selection. The Election Commission of India was also directed to create a dedicated mobile application containing information published by candidates regarding their criminal antecedents in order to keep voters more informed. Accordingly, the Court's earlier direction in its February 13, 2020 judgment was modified to this effect. (Brajesh Singh v. Sunil Arora

    "The nation continues to wait, and is losing patience. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government", the bench had observed. 

    Striking down Part IX B inserted by 97th Constitutional Amendment

    A 3-judge bench headed by Justice Nariman recently struck down Part IXB inserted in the Constitution by the Constitution(97th Amendment) Act 2011 which deals with cooperative societies on the ground of lack of ratification from state legislatures.

    Controversial orders of Justice Nariman

    The orders passed in the Assam-NRC and suo motu case on sexual harassment allegations against ex-CJI Gogoi take the sheen off the judicial legacy of Justice Nariman.

    Assam NRC Orders

    While sharing bench with Justice Gogoi, Justice Nariman passed the orders reviving the Assam NRC process, whereby persons who have been inhabiting in Assam for years were asked to prove their citizenship through documents showing that they had ties to India before the prescribed cut-off date in 1971.There are several reports documenting the hardships imposed on people, especially those belonging to the marginalized sections, by the NRC process. Minor errors in documents and bureaucratic lapses in record-keepings translated into near-loss of citizenship for lakhs of persons.  The final NRC list published in August 2019 excluded over 2 million people. In a rather ironic outcome of the case, the final list has few takers, and calls for a fresh NRC list are being made.

    Sexual Harassment allegations against former CJI Ranjan Gogoi 

    In April 2019, suo moto proceedings were initiated by the Apex Court in the wake of sexual harassment allegations by a court staff against the then Chief Justice of India Ranjan Gogoi. Justice Nariman was a part of the 3 judge Bench consisting of Justices Arun Mishra and Deepak Gupta which directed retired Justice AK Patnaik to conduct an inquiry into the alleged "larger conspiracy"  behind the allegations against Gogoi.

    The outcome of the probe into "larger conspiracy" issue is not known to public, and the Supreme Court recently closed the suo motu proceedings, saying "no useful purpose will be served" by continuing the proceedings.

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