12 Aug 2021 8:37 AM GMT
During his seven year term as a judge of the Supreme Court of Inida, Justice Rohinton Nariman has delivered several important judgments expanding the scope of fundamental rights jurisprudence, and settling the law in fields like arbitration and insolvency.Here are some notable quotes from the judgments authored by Justice Nariman.1. 'Expression of a view on any matter may cause annoyance to...
During his seven year term as a judge of the Supreme Court of Inida, Justice Rohinton Nariman has delivered several important judgments expanding the scope of fundamental rights jurisprudence, and settling the law in fields like arbitration and insolvency.
Here are some notable quotes from the judgments authored by Justice Nariman.
1. 'Expression of a view on any matter may cause annoyance to some' - Shreya Singhal judgment striking down Section 66A IT Act
"It is obvious that an expression of a view on any matter may cause annoyance, inconvenience or may be grossly offensive to some. A few examples will suffice. A certain section of a particular community may be grossly offended or annoyed by communications over the internet by "liberal views" – such as the emancipation of women or the abolition of the caste system or whether certain members of a non proselytizing religion should be allowed to bring persons within their fold who are otherwise outside the fold. Each one of these things may be grossly offensive, annoying, inconvenient, insulting or injurious to large sections of particular communities and would fall within the net cast by Section 66A. In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total" - Shreya Singhal vs Union of India and others(2015).
In the judgment authored in the case Navtej Singh Johar vs Union of India and others which decriminalized consensual homosexuality between adults, Justice Nariman observed :
"These fundamental rights do not depend upon the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality. The fundamental rights chapter is like the north star in the universe of constitutionalism in India. Constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes"
3. Thread of reasonableness - Triple Talaq case
"The thread of reasonableness runs through the entire fundamental rights Chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14", Justice Nariman observed in the case Shayara Bano vs Union of India which declared 'triple talaq' unconstitutional.
4. Section 497 IPC demeans and degrades women
"A statutory provision belonging to the hoary past which demeans or degrades the status of a woman obviously falls foul of modern constitutional doctrine and must be struck down on this ground also", Justice Nariman observed in his judgment in the case Joseph Shine vs Union of India which decriminalized adultery by striking down Section 497 IPC.
"Ancient notions of the man being the seducer and the woman being the victim is no longer the case today", he added.
5. Section 377 IPC irrational and capricious
"Given modern psychiatric studies and legislation which recognizes that gay persons and transgenders are not persons suffering from mental disorder and cannot therefore be penalized, the Section must be held to be a provision which is capricious and irrational. Also, roping in such persons with sentences going upto life imprisonment is clearly excessive and disproportionate" - in Navtej Singh Johar vs Union of India and others
"The dignity of the individual, which is spoken of in the Preamble to the Constitution of India, is a facet of Article 21 of the Constitution"- in the case Joseph Shine vs Union of India
7. Article 25 does not give right to particular section of persons to trample upon right o worship of another person of same religion - Sabarimala case
"Article 25, as has been held by the majority judgments, is not an Article that gives a carte blanche to one particular section of persons to trample upon the right of belief and worship of another section of persons belonging to the same religion. The delicate balance between the exercise of religious rights by different groups within the same religious faith that is found in Article 25 has to be determined on a case by case basis", Justice Nariman observed in the case Indian Young Lawyers Association and others vs Union of India which struck down the ban on entry of women aged between 10 and 50 years from entering Sabarimala temple.
8. Constitution our holy book - in Sabarimala review dissent
"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 observed in his dissent in Sabarimala review petitions.
9. On criminilaization of politics
"No one can deny that the menace of criminalisation in the Indian political system is growing day by day. Also, no one can deny that for maintaining purity of political system, persons with criminal antecedents and who are involved in criminalisation of political system should not be permitted to be the law-makers
This Court, time and again, has appealed to the law-makers of the Country to rise to the occasion and take steps for bringing out necessary amendments so that the involvement of persons with criminal antecedents in polity is prohibited. All these appeals have fallen on the deaf ears. The political parties refuse to wake up from deep slumber.
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", Justice Nariman in his recent verdict in the case Brajesh Singh vs Sunil Arora where directions were issued regarding publication of criminal antecedents of candidates.
10. Religious sentiments subservient to right to health
"The health of the citizenry of India and their right to "life" are paramount .All other sentiments, al beit religious, are subservient to this most basic fundamental right", Justice Nariman in the suo motu case taken over UP Government decision to allow Kanwar Yatra amid COVID second wave.
11. Advance given for flat booking a financial debt under IBC
"The expression "borrow" is wide enough to include an advance given by the home buyers to a real estate developer for "temporary use" i.e. for use in the construction project so long as it is intended by the agreement to give "something equivalent" to money back to the home buyers. The "something equivalent" in these matters is obviously the flat/apartment."
"Also of importance is the expression "commercial effect". "Commercial" would generally involve transactions having profit as their main aim. Piecing the threads together, therefore, so long as an amount is "raised" under a real estate agreement, which is done with profit as the main aim, such amount would be subsumed within Section 5(8)(f) as the sale agreement between developer and home buyer would have the "commercial effect" of a borrowing, in that, money is paid in advance for temporary use so that a flat/apartment is given back to the lender"
While holding that Section 138 NI Act proceedings are civil in nature for the purpose of being hit by moratorium under Section 14 of IBC, Justice Nariman made certain interesting observations :
"Section 138 proceeding can be said to be a "civil sheep" in a"criminal wolf's" clothing, as it is the interest of the victim that is sought to be protected, the larger interest of the State being subsumed in the victim alone moving a court in cheque bouncing cases"
"The real object of the provision is not to penalise the wrongdoer for an offence that is already made out, but to compensate the victim".