“The acceptance of indiscipline is even more disastrous than indiscipline itself.”
Today marks 100 years of Nani Palkhivala. January 16, 1920, was the day the nation was gifted with a guardian of civil rights. It has been rightly observed by Dharmendra Bhandari in his book that Nani was a God’s gift to India.
December 11, 2002 was the day when the country suffered a setback in the legal field. It was not only Palkhivala who left us, but along with him we lost a soldier who has been fighting for the basic rights which we possess today. From Privy purse cases to Kesavananda Bharati, he played an important role in directing the court and saving the doctrine of basic structure.
It is a well known fact that Part–III of the Indian Constitution evolved and was saturated during the time when Palkhivala was at his peak. Let us remember the man, who left behind a will which revolved around the society and its welfare. The man who gave everything for this nation and the rest is history.
On one of his answer papers during his LLB, the examiner wrote, “Frankly, this candidate knows much more than I do.” He was a meteor at the Bar and soon left his seniors way behind.
Nanabhoy (Nani) Ardeshir Palkhivala’s achievements in the field of public policy are enviable even to a seasoned policy-maker. And Nani Palkhivala was also, unequivocally, a colossus of the Indian bar. For him, law must have been an unlikely choice.
Coming from humble circumstances and out of a prolonged spell of speech impediment, the young Palkhivala aspired to be a lecturer in English. But, academia’s loss set in motion the development of one of India’s finest legal minds.
If I did not miss his lectures, I also did not miss any opportunity to listen to his arguments. His arguments in the Kesavananda Bharati case were brilliant. That was the time when the Supreme Court was shut down for all other cases and it was an unpaid holiday for us. We did not mind it because we could listen to Palkhivala.
In that case, he not only altered the law but also put the Constitution on an unshakable pedestal by propounding the theory that the basic features of the Constitution are unalterable, as quoted by Murlidhar C Bhandare in The Highest in Profession.
In 2019, we need more Palkhiwala(s) to protect the basic values of our Constitution. As a student of law, I believe that joining the bar is the most appropriate way to give justice to you. But today, we are witnessing that most of the graduates are eschewing the profession due to the base struggle. It’s been two years since I first read Nani Palkhivala’s works, and I believe that if Palkhivala wasn’t been there, then there would no Kesavananda Bharti v State of Kerala, as he played an integral part in convincing Kesavananda Bharti to file the PIL.
Every yearm the government introduces the Annual Budget and half of the population is unaware about the merits and demerits of the same. Palkhivala used to deliver public speeches at the famous Brabourne stadium and openly criticise the problematic part of the annual budget.
But today, I believe that we don’t have a single jurist who can openly address such gatherings that too pro bono; for public welfare. Taxation was never Palkhivala’s cup of tea but lately when he joined the bar, 90% of his cases revolved around taxation and he wrote a commentary on Income Tax along with his mentor Kanga (Kanga and Palkhivala’s: The Law and Practice of Income Tax).
His annual budget speech grew gradually. From around 300-400 people, the audience evolved up to one hundred thousand. People cannot deny that his speeches have influenced many and if we compare it today, I personally believe that we don’t have anyone with the same calibre who can the taxation law look so simple for the common people. When he spoke, the stadium became a parliament of the people.
He was born to a blue collar middle class family, which had a business of making of making palkhis (palanquins). Born with a stammer, it took Palkhivala years to overcome his little hurdles but ultimately, he did. Unlike many successful lawyers, Palkhivala had no legal background; moreover, the biggest hurdle which crossed smoothly was his stammer.
As a student of law, I believe that entering in a profession like law is a very tough task for those who have a legal background but keep in mind the ideas and struggles of Palkhivala, one can easily cross these hurdles if one is determined and focused towards the struggle. His father apparently said to him once, “My son – you are cut out for law” and the rest is history.
“To my parents, to their love and care and guidance, I owe a debt which could never be repaid. From them I learnt that all the loveliness in the world can be reduced to its first syllable. My father inculcated in me a passion for literature, which has remained an abiding joy throughout my life…. My mother was a woman of exceptionally strong character who could meet with Triumph and Disaster and treat the two imposters just the same….”
– Nani Palkhivala
During his life time, Palkhivala was awarded with many awards and honours and it was not only confined to the legal field. He was among those rarest lawyers who had a chance to represent India across its borders. He fought many international cases, he represented India before the special tribunal at Geneva and the Hague. The mentions can be stated as below:
In this case, Palkhivala fought for the rights for minorities which have been incorporated under Article 30 of the Constitution. The Gujarat University Act was enacted in 1949 and senate of the University incorporated section 40 and 41 which stated that all educational institutes within Ahmedabad would become constituent of the Gujarat University and their functions and sanctions shall be managed by the same.
Palkhivala argued that the state cannot make any law which is an attempt to take away the rights conferred in Part Three of the Constitution and if any attempt so is made then it would be null and void. He created a prism on the theme of autonomy of religious minorities, contending that any requirement of prior approval by the vice-chancellor or any other officer of the university authorized by him before awarding punishment in cases of disciplinary misconduct, and that too without any guidelines for the grant or refusal of such approval, would virtually deprive the management of any control whatsoever over its staff.
Ultimately, the majority judgment was in favour of the minorities and it was because of Palkhivala, who created a parallel wall of reflect the legal position of minority rights and the spirit of Article 13.
“The whole object of conferring the right on the minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality.”
– Nani Palkhivala
Kesavananda Bharti case is one of the most celebrated cases in Indian history, with 68 days of hearing and endless arguments. Palkhivala played a crucial role in the shaping the basic structure doctrine which was the subject matter of the case. After the Kesavananda Bharti case, Palkhivala wrote a letter to Mrs Gandhi when the government was attempting to get the case ‘overruled:
“However, I am most distressed and perturbed by the government’s attempt to get the judgment in Kesavananda’s case overruled. May I earnest request you to consider my contentions…it would be a great gesture on your part to withdraw the state’s plea for unsettling the law.”
These were some of the instances which shaped Nani Palkhivala as one of the most renowned jurist/lawyer/academician of this country. Most of the young lawyers should take inspiration from his readings, arguments and most importantly his will.
One of the most celebrated cases in Indian history was Kesavananda Bharti case, which gave us the basic structure doctrine. On April 24, 1973, Chief Justice Sikri and 12 other judges assembled to hear the most significant case of Indian history.
By a wafer-thin majority of 7:6, the Supreme Court held that the power of Parliament is unlimited but it cannot amend the basic structure of the Constitution which involved components like judicial review, secularism, and fundamental rights. HM Seervai, who is one of the most remembered jurist of all times also neglected the idea of unlimited power vested with the parliament.
Palkhivala was always known for his argumentation and his way of convincing courts. Here is one episode from his early days.
Palkhivala cites the example of Hitler and how he converted Germany into a dictatorship.
Justice Grover: We need not go into politics.
Nani Palkhivala: I accept.
Justice Grover: Sometimes, you go into politics and we are provoked to go into it.
Nani Palkhivala: I want to know whether this case can be decided without going into the ambit of politics. But, when I talk of totalitarian regimes and democracy, they form part of the constitutional argument.
Justice Dwivedi stepped in: Has any court decreed that there is an implied limitation on the power to wage war?
Nani Palkhivala: With the utmost respect, your lordship, may I say that no express power to make war is provided in the Constitution. May I ask this indulgence of this court to be excused from dealing with this topic, since it is not germane to the present case?
To conclude, one cannot deny that we need many Palkhivalas who can dwell up the legal system and interpret the laws to propound many doctrines which will ultimately protect our civil rights. One cannot miss his will, which clearly reflects his love and compassion for others. Long live the Constitution, long live Nani Palkhivala.
Here is a quote:
“When I die …Give my sight to tho man who has never seen a sunrise. Give my heart to one who has known the agony of the heart. Give my blood to a youth pulled from the wreckage of a car so that he might live to see his grandchildren play. Let my kidneys drain the poison from another’s body. Let my bones be used to make a crippled child walk Burn what is left of me and scatter the ashes to the wind to let the flowers grow. If you must bury something, let it be my faults and my prejudices against my fellowmen. Give my sins to the Devil. Give my soul to the God. If you wish to remember me, do it with a kind deed or word to someone who needs you. If you do all I’ve asked. I’ll live forever.”