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A look at his stellar life, on his 101st birth anniversary
“To my country men who gave unto themselves the constitution but not the ability to keep it, who inherited resplendent heritage but not the wisdom to cherish it, who suffer and endure in pain without the perception of their potential.” –Nani Palkhivala
For us at Communalism Combat (now SabrangIndia.in), Nani Palkhiwala will be remembered for quiet assertions of dignity and principle. On January 30, 1995 our magazine Communalism Combat with 30 other organisations demonstrated at Hutatma Chowk against the then Maharashtra government’s scrapping of the Justice BN Srikrishna Commission of Inquiry into the Bombay 1992-1993 violence.
As we sat there in silent protest with veteran activists like TK Somaiya of the Bombay Sarvodaya Mandal and KG Kannabiran of the PUCL whom we had especially invited down from Hyderabad to Mumbai, we were stunned as Nani Palkhiwala walked down from Bombay House to lend his presence to the protest. Others like Shashi Kapoor too had stepped in. Then in January 1995 when the Supreme Court of India summarily dismissed an appeal against the Bombay High Court judgement exonerating the newspaper, Saamna for provocative hate speech, Palkhiwala wrote in Communalism Combat, in an issue where veteran constitutionalist HM Seervai penned a special 5,000 word legal opinion. Palkhiwala’s deep commitment to the Indian Constitutional ethos of secularism ran deep.
Nani Ardeshir Palkhivala, also known as Nanabhoy Palkhivala, was born on January 16, 1920 to a blue collar middle class family in Mumbai. As a lover of literature who would save money to buy second hand books, he wished to pursue a career as a lecturer but he lost the post to someone else due to lack of experience. He then went on to pursue law at the iconic Government Law College, Mumbai that is alma mater to the most cherished names of India’s legal tradition. On completion of his formal legal education, he gained training under the famed legal expertise in the chambers of Sir Jamshedji Kanga and soon became an expert in tax and commercial law. He had a rather meteoric rise in his profession and within a few years of practice, he became quite popular and was briefed in crucial matters at the Bombay High Court.
This sharp knowledge of taxation and commercial law set the stage of his iconic mass lectures at the Brabourne Stadium every year, a Palkhiwala special analysis of the Indian Government’s annual financial budget. For decades, the Budget presentation in Parliament had a companion event in the shape and form of Nani Palkhiwala’s special analysis and exposition of the Budget. He spoke to a packed audience!
Mr. Palkhivala was a humble recipient of several accolades and titles. Surely, “conscience keeper of the nation” has to be the one that suits him the best. On his 94th birth anniversary, the Indian Post released stamps commemorating him.
The meteoric rise
In his stellar career as an advocate, Mr. Palkhivala fought many cases that positively paved constitutional jurisprudence and countrymen of today owe him a ‘thank you’ for the same. Only 10 years into his practice, he was before the Supreme Court arguing against an appeal filed by the State of Bombay as Bombay High Court had struck down its circular for being violative of Article 29(2) of the Constitution. It was related to the right of Anglo-Indian schools regarding admission of students in schools teaching through the medium of English. The Supreme Court upheld the high court judgment.
Despite his busy schedule practicing law, he devoted time teaching law to students at his alma mater, Government Law College, Mumbai. One of his many students was Soli Sorabjee, who, till this day fondly remembers him and writes memoirs of him.
“Clarity of thought coupled with precision and elegance of expression, impassioned plea for the cause he espoused in the case, excellent court craft and an extraordinary ability to think on his legs rendered him an irresistible force and made him (Palkhivala) sui generis.” these and many more words have been used by Soli Sorabjee, and eminent jurist and former Attorney General of India who worked for decades with Mr. Palkhivala.
He was offered judgeship of the Supreme Court in the early sixties and before that was offered the position of Attorney General of India, both of which he refused. In his book, ‘We the nation’ he has written about why had refused the position of Attorney General and stated how it was his privilege to argue for the citizens in exemplary cases like the Bank Nationalisation case, the Privy Purse Case as also the landmark Kesavananda Bharti case.
He, however, went on to accept a Directorship position at the House of Tatas.
The conscience keeper
It is probably the most apt title one could have ever been bestowed with. Mr. Palkhivala is rightfully the conscience keeper of the country as he was the counsel arguing before a 13-judge bench of the Supreme Court on behalf of Swami Kesavananda Bharti convincing a mammoth 13 bench jury that there were some essential parts of the Constitution that the Parliament must not be allowed to change, alter or amend. This judgement is seminal for India and India’s fledgling democracy, described as one that “has been a salutary check on Parliament’s tendency to ride roughshod over fundamental rights and its insatiable appetite to encroach upon fundamental rights”.
The battle for the assertion of the Constitution over a government heady with an electoral majority did not stop here. Mr. Palklhivala even defended the hallmark judgement before the same Supreme Court when the Indira Gandhi government challenged it and asked the court to reconsider the judgement. In the words of one of the Judges on the Bench, Justice H.R. Khanna, “The heights of eloquence to which Palkhivala had risen have seldom been equalled and never been surpassed in the history of the Supreme Court”. Mr. Palkhivala even wrote a long letter to Indira Gandhi stating how he was unwilling to side with the government in challenging the verdict. Among many other things, he wrote,
“I beseech you, dear Indiraji, to consider the consequences of seeking to have the judgment in Kesavananda case overruled. We have reached a historic moment when two roads diverge in the woods and our own decision at this juncture can have an imponderable impact for the good of the country. Please forgive me or inflicting this long letter on you. I would not have done so but for my conviction that you always have an open mind and that your decision can save the Constitution, ensure the onward march of the nation on our chosen path, prevent several months of waste of the court’s time. Parliament’s amending power to be limited, but it is based upon my belief that it would be a great gesture on your part to withdraw the state’s plea for unsettling the law.” (reproduced in Nani A Palkhivala — A Life, by MV Kamath)
Another feather to his cap was the judgement in Minerva Mills case (Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625) which led the Supreme Court to declare that clause (4) of Article 368 of the Constitution which excludes judicial review of constitutional amendments was unconstitutional.
His further contribution to constitutional jurisprudence was marked by the privy purse case or Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 85. The Government of India had passed an executive order derecognizing the Princes to whom Sardar Vallabhbhai Patel had given a pledge in the Constituent Assembly. He felt that the action of the Government of India apart from being unconstitutional was in breach of constitutional morality. He believed that,
“The survival of our democracy and the unity and integrity of the nation depend upon the realisation that constitutional morality is no less essential than constitutional legality. Dharma (righteousness; sense of public duty or virtue) lives in the hearts of public men; when it dies there, no Constitution, no law, no amendment, can save it.”
He also has major contributions in strengthening freedom of press as stands today in the country. He was the counsel for Bennett Coleman while arguing against imposition of severe restrictions on the import of newsprint. “Newsprint does not stand on the same footing as steel. Steel will yield products of steel. Newsprint will manifest whatever is thought of by man”, he had argued.
He even fought for the rights of minorities by handling a case for St. Xavier’s College, Mumbai, from where he had received his first Bachelor’s Degree. He fought the case at the Supreme Court alongside Soli Sorabjee, neither of them charged fees for this and argued for the autonomy of minority educational institutions and limitations of governmental interference and the nine-judge bench in a majority judgment had upheld the rights of minorities, again a substantial contribution to constitutional jurisprudence.
He had great reverence towards the Indian Constitution and he said,
“The Constitution was meant to impart such a momentum to the living spirit of the rule of law that democracy and civil liberty may survive in India beyond our own times and in the days when our place will know us no more”.
He also said that the Constitution provided for stability without stagnation and growth without destruction of human values.
He represented India in three cases in the international for a, namely Pakistani’s claim to enclaves in Kutch, before a special tribunal in Geneva another, before the International Civil Aviation Organisation at Montreal, and later in an appeal before the World Court at the Hague when Pakistan claimed the right to fly over India.
The many honours
To this extraordinary human being that he was, it is no surprise that Mr. Palkhivala received many honours and awards for his contribution to the legal field. To name a few, Padma Vibhushan; the Honorary Membership of the Academy of Political Science, New York; the First National Amity Award; the Dadabhai Naoroji Memorial Award; the Living Legend of the Law Award by the International Bar Association; a Certificate of Honour and Award by the Bar Association of India; the first Indo-American Society Award; and “Citizen of Bombay”, “Person of the Year”, “Man of the Year” and “Lifetime Achievement” Awards by various public institutions.
He was also conferred honorary degrees of Doctors of Laws by international Universities including Princeton University, New Jersey, and Lawrence University, Wisconsin, as well as Universities in India, including Annamalai University, Tamil Nadu University and the University of Mumbai.