Justice Nariman, architect of verdicts on gay sex, Sabarimala, retires

“I feel like I am losing one of the lions that guarded the judicial institution,” Chief Justice N. V. Ramana said on Thursday (August 12) while paying glowing tributes to Justice Rohinton Fali Nariman on his superannuation after more than seven years at the Supreme Court bench.

Justice Nariman, who became an SC judge on July 7, 2014, disposed of more than 13,500 cases and delivered historic verdicts including declaration of privacy as fundamental right, setting aside of an IT Act provision empowering arrests, decriminalising consensual gay sex and permitting women of all ages to enter Sabarimala temple in Kerala.

“I think I can conclude this reference with just one line: with brother Nariman’s retirement, I feel like I am losing one of the lions that guarded the 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,” said the CJI, who shared the bench with Justices Nariman and Surya Kant for the ceremonial hearing at noon.

“Personally, I am a little overwhelmed and I am finding it difficult to express my thoughts in words,” the CJI said.

Justice Ramana was effusive in his praise and broke convention by permitting all lawyers, besides Solicitor General Tushar Mehta and SCBA President Vikas Singh, who wanted to say few words in their colleague’s honour.

Son of noted jurist Fali Nariman, Justice Nariman was born on August 13, 1956. He graduated from Shri Ram College of Commerce and completed his LL.B. from University of Delhi, where he obtained a first-class degree and stood second in his entire batch.

Subsequently, he went to Harvard Law School to complete his LL.M. degree and after completing his post-graduation in law, he practised maritime law in New York for one year.

In 1993, then CJI M.N. Venkatachaliah amended the court’s rules to designate him senior advocate at the age of 37. He was appointed Solicitor General of India in 2011. In 2014 he became only the fifth lawyer in the nation’s history to be directly appointed as a Supreme Court judge.

An ‘Institution in Himself’

A brief summation of Justice Nariman’s career does not do him justice.

Justice Nariman is well known for his deep interest in history, philosophy, literature and science. Plain-spoken, both inside and outside the court, he is an ordained Parsi priest.

Adept at performing marriages and the Navjote ceremony — when a child belonging to the Zoroastrian family is initiated — Justice Nariman has access to enter the sanctum sanctorum of a fire temple.

Justice Nariman is also a scholar of western classical music and theology and a published author. The publishing house Penguin, which is releasing his new work Discordant Notes – The Voice of Dissent in the Last Court of Resort in two volumes, calls him “an institution in himself”.

Supreme Court Tenure

During his seven-year tenure, Justice Nariman’s delivered several crucial –  and eloquent – judgments. The apex court amended its rules following his judgment that review petitions filed by condemned prisoners should be heard in open court.

He struck down Section 66A of the Information Technology Act, which armed the State with power to imprison people for ‘uncomfortable’ social media posts.

In the Shreya Singhal case, Justice Nariman said: “The freedom of speech and the Press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions.”

His opinion paved the way for privacy to be read into the Constitution as a fundamental right.

Also see: Lawyers behind Section 377 verdict come out as a couple

Decriminalising homosexuality in 2018 in the Navtej Singh Johar and Others vs Union of India case, Justice Nariman said homosexuality cannot be regarded as a mental disorder and gays have the right to live with dignity. “History owes the LGBT community an apology for their sufferings,” he said.

Justice Nariman was also part of the majority on the Bench that held that women aged between 10 and 50 years cannot be barred from the Sabarimala temple on the ground of menstruation. Later, when the case came up for review, his dissent shone as much as his earlier majority opinion.

His judgment on triple talaq found the Muslim man’s “capricious and whimsical” right “manifestly arbitrary”.

Also read: Triple talaq law a travesty of justice but triumph of politics

Justice Nariman held political parties accountable for the “criminal” candidates they field. His last judgment on August 10 said: “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.”

In one of his judgments he spoke of law’s tolerance for moral wrongs. “Many things which are not punishable are morally worse than many things which are punishable… The rich man who refuses a mouthful of rice to save a fellow creature from death may be far worse a man than the starving wretch who snatches and devours the rice. Yet we punish the latter for theft.”

Also read: No one razed the Babri Masjid, it fell down by itself

As eloquent as the justice was, his absence from the five-member Bench that delivered the unanimous verdict clearing the way for the construction of a Ram Temple at Ayodhya spoke volumes.

What Next?

Justice Nariman’s exit, apart from adding to the vacancy list, will return the spotlight on the unprecedented 22-month impasse within the Collegium over appointment of judges.

Justice Nariman, who has been part of the Supreme Court Collegium since March 2019, has made it clear that no consensus can emerge on names unless two judges who are most senior in the All India Seniority List for high court judges are first recommended, according to The Indian Express.

Karnataka High Court Chief Justice Abhay Oka is No 1 on the list, followed by Tripura High Court Chief Justice Akil Kureshi. Justice Oka’s parent high court is Bombay, Justice Kureshi is from the Gujarat HC.

With Justice Nariman gone, the court will have only 25 judges against a sanctioned strength of 34. Additionally, Justice Navin Sinha is set to retire on August 19, which will lead to a 10th vacancy.

The last appointment to the SC was in September 2019 and the earliest vacancy was created in November 2019 when Ranjan Gogoi retired as CJI.