On the eve of Justice Rohinton Fali Nariman’s retirement from the Supreme Court, ANAND GROVER writes a tribute to his professionalism as a judge and his commitment to Constitutional values, explaining why, in his eyes, Justice Nariman is the perfect judge.
USTICE Rohinton Fali Nariman retires today from the Supreme Court. After an illustrious career as a lawyer, he leaves behind a legacy as a judge unmatched in the present times.
Amongst the notable and historic judgments he has penned are Shreya Singhal (striking down Section 66A of the Information Technology Act), Puttaswamy (holding that the right to privacy is a protected fundamental right in the Indian Constitution), Shayara Bano (striking down triple talaq), Navtej Singh Johar (reading down Section 377 of the Indian Penal Code), Indian Young Lawyers Association (permitting entry to women in the Sabarimala temple in Kerala), Paramvir Singh Saini (directing the installation of CCTV cameras in police stations), Nikesh Tarachand Shah (striking down Section 45 of the Prevention of Money Laundering Act imposing twin conditions for bail) and Tofan Singh (holding that officers under the Narcotic Drugs and Psychotropic Substances Act are police officers).
An exceptional judge and model professional with high EQ
That he is extremely learned, not only in law but also on a range of topics, including theology and history, would be evident to anyone who has read his judgments or listened to any of his speeches.
His memory is recalled as legendary in all the circles he moves in. His knowledge of English and American Constitutional law is exceptional.
But all this never made him arrogant as a judge in court. He was also careful to take the opinion of his fellow judges who sat with him on any bench.
He was polite to lawyers. He listened to all who had a point to make, regardless of their seniority. “Face law”, as it is popularly known in legal circles, was not a factor at all in his court. A junior who had a point to make not only had an ear in his court but was openly lauded for their arguments by him. I recall that during the hearings in Puttaswamy, he remarked in open court that the juniors who appeared for the government had better points than the seniors; a case of the “tail wagging the dog”, as he put it.
He would carefully take down the points made by counsel, and if in doubt, would ask the counsel to repeat. Despite his enormous learning and knowledge in law, his thirst for learning meant that he would always want to learn from anyone who had something different to say. As a lawyer, one genuinely felt that one was being listened to.
He is also quite hard working. I happened to meet him at a social event once, and ventured to ask him how he was faring as a judge; he remarked that he tremendously enjoyed being a judge, and wished he had taken up judgeship earlier.
I reckon that is what gave him the enormous energy to work hard, listen to long, sometimes boring and poor arguments, and then write judgments meticulously addressing all the issues raised.
The only quibble one could hold against his judgments is that they tend to be extremely lengthy, with long quotations drawn from other judgements. But that is a tradition of the Indian judiciary. As an aside, this needs to change; it is high time that we adopt the custom of the South African judiciary, where there is an unwritten rule that a judgment should not be more than 50 pages.
Judgments that illustrate his commitment to constitutionalism
What sets Justice Nariman apart from the rest of the pack is his commitment to liberal constitutional philosophy, the underlying ethos of our Constitution, in both letter and spirit. Due to that, he was always ready to take tough decisions, irrespective of whether the executive branch liked it or not. He was not bothered about the interest of the government at all. All he was concerned with was faithfully following the Constitution and the law. For him, this was not only a theoretical matter to be waxed lyrical about in speeches when it was convenient to do so, but the basis of what actually applied in practice in the cases that came before him, and rendering judgements on that basis.
It is in this context that the most important judgments he rendered, in my opinion, were Mohd Arif, Nikesh Tarachand Shah and Tofan Singh, all concerning the liberty of individuals.
Under the extant Rules of the Supreme Court, review petitions were disposed of by circulation. In practice, this meant that judges would not meet, would not confer, and would simply reject the review petition without any oral arguments in open court. Experience shows that 99% of review petitions are dismissed, sometimes even without application of mind. In Mohd Arif, the question raised by the persons on death row was whether, in death penalty matters where Supreme Court had affirmed the death penalty in the appeal or otherwise, the review petitions should be heard in open court. Seeing the importance of the issue, that involved of extinction of the life of an individual, it was held by Justice Rohinton Nariman that considering the fate of one life would depend on review petition, the mandate of the Articles 14 and 21, due process, required that review petitions be indeed decided in open court. With this not only the fair process was set into motion but the dictum of “Justice must be seen to be done” was also fulfilled.
Nikesh Tarachand Shah
In Nikesh Tarachand Shahi in 2020, the issue involved was the constitutionality of Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA). This provision laid down two stringent conditions for granting bail in respect of those arrested for offences punishable with imprisonment for over three years, listed in the Schedule to the PMLA: that for the bail to be granted, the Public Prosecutor has to be heard, and the court has to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence. The two conditions were applicable to money laundering offences, and all offences under Part A of the Schedule.
Originally, Schedule’s Part A contained serious offences, and its Part B contained less serious offences. Later, Part B offences were transplanted into Part A of the Schedule. As a result, the twin stringent conditions for bail became applicable to all offences of widely different types, some extremely serious, and others not so.
Justice Nariman held that applying the same yardstick to all offences was manifestly arbitrary (his favourite doctrine), and struck down the provision authorising the same.
Again last year in Tofan Singh, the issue was whether officers under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) were “police officers” within the meaning of Section 25 of the Indian Evidence Act, 1872. Under this provision, statements given to the police are not admissible as evidence, as it has been understood right from the British days that a person is likely to be coerced by the police to give a confession. This is also fortified under ordinary criminal law, wherein a statement made to the police under Section 161 of the Code of Criminal Procedure is not admissible as evidence.
However, surprisingly, in the 1960s, under special enactments such as the Customs Act and the Excise Act, among others, the Supreme Court started holding that the officers employed to investigate offences under such special laws were not police officers within the meaning of the Evidence Act.
Under the NDPS Act, one of the most draconian laws on the statute book today, the officers, after carrying a search of the accused, would summon them, and elicit from them a statement that would incriminate them fully. If the contraband seized would be of “commercial quantity,” the accused would not get bail and would be incarcerated for 10 years.
This practice, in spite of being contrary to the general law of evidence, was regularly employed since the NDPS Act was enacted in 1985. Several judgments went on to endorse this practice, such as in Raj Kumar Karwal in 1990.
Justice Nariman carried out detailed scrutiny of earlier judgments in this regard and found that the NDPS Act was quite different from the earlier special laws that were the subject matter of earlier judgments. He then held, in no uncertain terms, that statements made to the NDPS officers are akin to police officers, and while overruling Raj Kumar Karwal, he held that statements made to the officer appointed under the NDPS are not admissible in evidence.
Both these judgments had a huge impact on the liberty of persons incarcerated under the PMLA and NDPS Act. Persons rotting in jail on account of these draconian provisions were later granted bail.
Any other judge would have thought twice before striking such provisions down as unconstitutional or reading them in consonance with the Constitutional ethos. Justice Nariman not only spoke but he also acted. This is what sets him apart from all other judges, past and present. To me, he was the perfect judge.
Indian citizens are currently plagued by a number of issues. Unfortunately, Justice Nariman will not be on the bench to lend his mind to those issues. Knowing him, though, he will, even off the bench, continue working towards ensuring that the liberal pluralist constitutionalism, with its Preamblutory vision, survives in India.
We shall dearly miss your presence on the bench, Justice Nariman.
(Anand Grover is a senior lawyer at the Supreme Court and co-founder of The Leaflet. The views expressed are personal.)