Champion of Constitutional Rights Retires from Supreme Court - Justice Rohinton Nariman's legendary legacy

Author: Reshmi Hossain, IP & Commercial Law Specialist, LLC

Justice Rohinton Nariman has retired as a Judge of the Supreme Court in August 2021 with a rapturous farewell just over 7 years after his elevation directly from the Bar. His brief tenure as a jurist leaves us a legendary legacy that will traverse the chapters of Indian jurisprudence in golden font.

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. He read the Master’s degree in Law from the prestigious Harvard Law School in 1980-81. Justice Nariman’s legal career as a counsel spanned over 1979 to 2014 and he was designated as a Senior Advocate of the Supreme Court of India when he was just 37 years old as the then Chief Justice of India, M.N. Venkatachalaiah, J., amended the Rules as the minimum age for being made a senior in the Supreme Court was then 45 years.

While Justice Nariman’s rulings on areas of corporate and constitutional law have prominently set a benchmark, his contribution to the field of arbitration is equally stellar, and his decisions have assured a more effective alternative dispute resolution mechanism. In his seven years as a Supreme Court judge, he has delivered some key decisions in diverse areas of law. I have dedicated this piece to only a few of his landmark decisions that have helped shape the Indian legal landscape.

The 2021 decision in the dispute between Amazon and Future Retail, allowing the enforcement of the emergency arbitral awards in India on the grounds that such orders would further “the objectives of the Arbitration Act, i.e., to decongest the court system and to give the parties urgent interim relief in cases which deserve such relief,” is momentous. Most of his judgments echo the objective of promoting arbitration by limiting judicial intervention and encouraging conclusiveness.

Justice Nariman’s decisions have impacted all stages of the arbitral process. With regard to the stage of appointment of an arbitrator in the 2019 decision in Mayavti Trading Limited[i], the judiciary’s power to determine preliminary issues such as the validity of the arbitration agreement was restricted, thus re-establishing this power in the hands of the arbitral tribunal.

In Garware Wall Ropes[ii], he held that an arbitration clause contained in an unstamped agreement could not be acted upon until it was impounded and the deficit stamp duty paid. A Constitutional Bench of the Supreme Court is yet to finally decide this question, until then Justice Nariman’s decision on this point will continue to haunt disputing parties with unstamped contracts.

In Gemini Bay Transcription Pvt. Ltd v. Integrated Sales Service Ltd[iii], 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 stating that grounds for challenging 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 be seen to be contained in Section 48(1)(a). Furthermore, it was held that perversity could not be permitted as a ground to challenge a foreign arbitral award.  

In Amazon.com NV Investment Holdings LLC v. Future Retail Limited[iv], it was held that an award passed by an Emergency Arbitrator is enforceable under the Arbitration and Conciliation Act, 1996. The Court held that the emergency arbitrator’s award holds good under Section 17(1) of the Arbitration and Conciliation Act, 1996 and a single judge’s order for such award cannot be appealed under Section 37(2), thereby upholding the Singapore’s EA interim order and in turn stalling Future Retail’s $3.4 billion deal. The judgment lay to rest the ambiguity with respect to Emergency Awards while also declaring 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, described as "awards". Such orders are an important step in relieving civil courts and allowing interim relief to be granted to parties under Section 17(1) of the Arbitration Act.

The significant question of designating a ‘seat’ of arbitration has been a subject of much deliberation owing to the jurisdictional issues. In Indus Mobile Distribution[v], Justice Nariman discussed the relevance of the ‘seat’ or ‘place’ of arbitration, and held that once the arbitration clause designated a state or city as the seat, the courts at the seat had exclusive jurisdiction over all proceedings, thus helping resolve jurisdictional issues in choosing a domestic seat within India to a noteworthy extent.

Recently, in PASL Wind Solutions[vi], a decision that has a far-reaching impact on arbitration in India, Justice Nariman held that two Indian parties could validly chose to seat their arbitration abroad. The decision is significant not only for giving primacy to party autonomy, but also for providing businesses that operate in India, including foreign companies with local subsidiaries, an opportunity to choose neutral arbitral jurisdictions.

Restricting the scope of using grounds of public policy in resisting the enforcement of an arbitral award is reflected in Justice Nariman’s decision in Associate Builders[vii], where the court held that it could not act as a court of appeal and that the arbitrator was the final authority on the quality and quantity of evidence. Further in Ssangyong Engineering, decision taken post the 2015 amendments, it was clarified that judicial interference with the merits of an award on the ground that the arbitrator had not adopted a judicial approach would no longer be permitted under the ground of public policy.

In Amway India Enterprises Pvt. Ltd v. Ravindranath Rao Sindhia[viii], the court 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 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.

In PSA SICAL Terminals (P) Ltd. v. V.O. Chidambranar Port Trust[ix], the court 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 could not rewrite the contract for the parties.

Justice Nariman has championed women’s rights in society through his judgments, in turn being able to induce the idea in the minds of the society that there is scope for reformation in the position of women. He expressed his hope by asserting that the first woman Chief Justice of India will not be very far off as, “We have had a woman President. We have had a woman Prime Minister. We have never had a woman Chief Justice of India", during his lecture delivered at the 26th Justice Sunanda Bhandare Memorial Lecture at the national capital. He mentioned, “We have had this misogynistic tradition for ages...Women in the history have all started out by being perceived by the other sex as something below the men”, adding it was not before the 16th century when people started accepting that to rule was not the exclusive preserve of men.

His ideologies are reflective in various decisions he has been part of like Joseph Shine v. Union of India[x], where the 5-Judge Constitution Bench decriminalized adultery by striking down Section 497 IPC for being unconstitutional and in violation of Articles 14, 15 (1) and 21 of the Constitution. Justice Nariman observed that “"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", further adding that "Ancient notions of the man being the seducer and the woman being the victim is no longer the case today.”

In Indian Young Lawyers Assn. v. The State of Kerala[xi] a 5-Judge Constitution Bench, by a majority of 4:1, held that not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple was unconstitutional. Justice Nariman observed "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 was also part of the ground-breaking ruling in Shayara Bano v. Union of India[xii], wherein a 5-judge Bench of the Supreme Court held by a 3:2 majority that the practice of Triple Talaq was unconstitutional and in violation of Articles 14 and 15 of the Constitution. Justice Nariman in particular penned, “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 was also part of the Bench that ruled on the controversial subject of Section 377. In the landmark judgment passed in Navtej Singh Johar v. Union of India[xiii], the ruling became instrumental in upholding the rights of the LGBT community, as the 5 Judge Bench struck down Section 377 IPC for being unconstitutional insofar it criminalised gay sex between consenting adults by reversing the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation[xiv].  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".                       

In K.S. Puttaswamy v. Union of India (Privacy Judgment)[xv], the 9 Judge Bench unanimously held that that right to Privacy is a basic fundamental right, observing that the Right to Privacy forms an intrinsic part of Art. 21 and freedoms guaranteed in Pt. III. It was held that it permeates the core of the 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. In relation to this, Justice Nariman commented: “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 Nariman deserves credit for settling several ambiguities in the field of insolvency law and some, among many, are mention worthy. In Navinchandra Steels (P) Ltd. v. Srei Equipment Finance Ltd[xvi], the Bench of Rohinton Nariman and B.R. Gavai, JJ., addressed the question as to whether an insolvency proceedings could be initiated after the winding up application had been admitted under the Companies Act. The Bench stated, “…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.”

In Manish Kumar v. Union of India[xvii], the 3-Judge Bench of Rohinton Fali Nariman, Navin Sinha and K.M. Joseph, JJ., in a 465-pages extensive 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 observing 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”.

In Swiss Ribbons (P) Ltd. v. Union of India[xviii], the bench of R. Nariman and Navin Sinha, JJ had, in a landmark verdict, upheld the validity of the Insolvency and Bankruptcy Code, 2016 in its entirety as the provisions contained therein passed 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.”

There have also been note-worthy rulings in the information technology arena e.g., Shreya Singhal v. Union of India[xix], wherein the Bench struck down the Section 66A of the Information Technology Act, 2000 for being violative of Article 19(1)(a) and not saved under Article 19(2) of the Constitution. It was held that Section 66A would not pass 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. Justice Nariman authored the judgment and it was 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.” 

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal[xx], with reference to the interpretation of Section 65B of the Evidence Act, 1872 dealing with admissibility of electronic records, the 3-judge bench held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced.

By the end of his tenure as a judge, Justice Nariman had disposed more than 13,500 cases and penned many historic judgments which have illuminated the Indian jurisprudence. He is one of the legal luminaries who did not restrict himself only to the study and development of law, but also devoted equal time and mind in understanding various aspects of religion, philosophy and music among others. He has always valued and upheld the constitutional and human rights of an individual[xxi]as reflected in the catena of judgments passed over his tenure. Justice Nariman’s legacy as a judge will serve as an inspiration for the entire legal fraternity and for the thousands of citizens approaching courts to remedy breaches of their legal rights.