Jurist
NAME: Nani Ardeshir Palkhivala
PROFESSION: Jurist, Scientist, Auto biographer, Writer & Economist
BIRTH: 16 January, 1920
PLACE OF BIRTH: Mumbai
DIED: 11 December, 2002 (aged 82 years)
FATHER’S NAME: Ardeshir Palkhivala
MOTHER’S NAME: Sheherbanoo
SPOUSE: Nergesh Palkhivala
SIBLINGS: Amy Ranina, Behram A Palkhivala
EDUCATION: M.A.( Hons.) in English from University of Bombay
LL.B from Government Law College, Bombay
Doctor of Laws from Princeton University, New Jersey (USA) & Lawrence University, Wisconsin (USA)
AWARDS: Padma Vibhushan, 1998
The Honorary Membership of the Academy of Political Science
The First National Amity Award
The Dadabhoy 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.
SPECIALISATION : Constitutional law, Commercial and Tax law.
BOOKS :
Authored by Nani Palkhivala:
We, The Nation: The lost Decades; We, the People: India, the Largest Democracy; The Law and Practice of Income Tax; The Global Economy: A North-South Dialogue; Co- Author of ‘Taxation in India’, published by the Harvard University in the World Tax Series; The Highest Taxed Nation; Judiciary Made to Measure; Our Constitution Defaced and Defiled; India’s Priceless Heritage; Essential unity of all Religions.
Authored on Nani Palkhivala:
Nani Palkhivala: The Courtroom Genius by Soli J. Sorabjee & Arvind P. Datar; Nani A. Palkhivala: A Life by M V Kamath; Wits and Wisdoms of Nani Palkhivala by Jignesh R.Shah; Nani Palkhivala a role model by Major General Nilendra Kumar; Bemisaal Nani Palkhivala by Major General Nilendra Kumar; and The Legend of Nani Palkhivala by MR Pai.
BACKGROUND : He was born in a middle-class family on January 16, 1920, and spent his childhood at Nana Chowk, Bombay. Nani’s father ran a laundry at Cumballa Hill and was the first person to influence him as a child. He learnt from his father to do his work,with the skill of perfection.He married Nargesh in 1945.
UPBRINGING AND EDUCATION : Palkhivala did his schooling from Master’s Tutorial High School in Bombay. After completing his matriculation, Nani completed his MA in English Literature from Xavier’s College in 1942.Later on, he obtained his degree in law from Government Law College.
In 1978, the Princeton University, New Jersey (USA) conferred on Palkhivala, the degree of Doctor of Laws. Lawrence University, Wisconsin (USA) also conferred on Palkhivala, the honorary degree of Doctor of Laws in 1979.
WALK OF LIFE AS JURIST: Nani Palkhivala was called to the bar in 1946 and worked in the chambers of the legendary Sir Jamshedji Behramji Kanga in Bombay.
He quickly developed a reputation as an eloquent and persuasive lawyer and was always the centre of attention in court, where law students and younger members of the bar association would flock to watch him. His excellent court craft and his remarkable capacity to remember scarcely known information made him an unstoppable force.
Palkhivala’s first involvement in a case of constitutional significance occurred in 1951, where he acted as junior counsel in the case of Nusserwanji Balsara vs. State of Bombay [(1951) Bom 210], helping the esteemed Sir Noshirwan Engineer to challenge several provisions of the Bombay Prohibition Act.
Until the year had passed, Palkhivala himself argued cases, but his first case of constitutional significance (a challenge to the validity of land requisitions) had been lost before the High Court of Bombay.
Abdul Majid v. P.R. Nayak, AIR 1951 Bom 440 and State of Bombay v. Heman Santlal Alreja, AIR 1952 Bom 16 were two such cases in which Nani distinguished himself in 1950-51.
The case of constitutional importance, which Palkhivala argued in 1954 and won before the High Court of Bombay, concerned the interpretation of Article 29(2) and Article 30 of the Constitution. It related to the right of Anglo-Indian schools to encourage students to study in schools through the medium of English.
The challenged circular issued by the State of Bombay was struck down by the Division Bench of the Bombay High Court, presided over by that great Chief Justice, M.C. Chagla. Chagla was the favourite judge of Nani.
He found Chagla to be a great judge whose burning desire was to do true justice and whose decisions, in the words of Nani, “had no dark nooks or misty crannies” The State of Bombay referred the matter to the Supreme Court, which upheld the judgement of the High Court of Bombay.
It ruled that the challenged circular violated the fundamental right provided under Article 29(2) of the Constitution. Nani has brilliantly argued the case before the Supreme Court.
His contribution in the development of Constitutional jurisprudence began when he started advocating for the cases in which involved the interpretation of constitution.
In, State of Bombay v. Bhanji Munji, AIR 1955 SC 41, the validity of the Bombay Land Requisition Act was questioned in Bhanji Munji5. The Supreme Court the same doctrine which was applied in the A.K. Gopalan v. State of Madras, AIR 1950 SC 27 that the freedoms relating to the person of a citizen secured by Article 19 presuppose the presence of a free citizen and can no longer be enjoyed if a citizen is deprived of his or her liberty by the law of preventive or punitive detention.
The Court therefore held that, where there is a substantially complete deprivation of the property already held and enjoyed, Article 19(1)(f) is omitted and is not applicable but one must then turn to Article 31 and see to what degree it is justified.
Despite the clear case of Palkhivala, the Supreme Court declined to test the validity of the Bombay Land Requisition Act on the touchstone of Article 19(1)(f).
Palkhivala claimed that a Constitution is designed not merely to provide for the exigencies of the moment but to survive over the years. He called for us to become accustomed to a broad view of the great instrument, since “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 pointed out that our original Constitution offered peace without inflation and development without the degradation of human values. He shared the thinking of Thomas Jefferson who said:
“Some men look at constitutions with sanctimonious reverence and deem them like the Ark of the Covenant too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment…. I am certainly not an advocate for frequent and untried changes in laws and Constitution … but I know that the laws and institutions must go hand in hand with the progress of human mind…. As new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also and keep pace with the times.”
Palkhivala continued to such outstanding work in Constitutional law and also in Commercial and tax law. His contribution in commercial law can be seen in the Bank Nationalisation Case.
Nani’s intimate knowledge of taxation law and mastery of constitutional principles were at play in the challenge to the validity of the Expenditure Tax Act. This was one of Nani’s masterly but unsuccessful performances.
The decision of the Supreme Court in Minerva Mills was another victorious move by Nani to avoid the defamation and defilement of our Constitution. His unsurpassed advocacy in the case led the Supreme Court to state that Article 368(4) of the Constitution, which prohibits judicial review of constitutional amendments, was unconstitutional.
Palkhivala’s range of legal practice is also evident by his appearance and advocacy in Seshammal v. State of which involved the right of archakas in temples. In that case, Palkhivala expounded the rights which flow from the appointment of a priest or an archaka to perform religious functions and the impact and implication of that appointment in relation to the freedom of religion guaranteed by Articles 25 and 26 of the Constitution.
Although, all his contributions are something which cannot be compared to each other but his most important contribution was providing India a doctrine of ‘Basic Structure’ in Keshvananda Bharati’s Case. This is one of the most important Constitutional judgement, whose importance is considered in almost all cases which needs interpretation of Constitution.
Palkhivala’s forensic achievements were not confined to courts in our country. He represented India in three cases in the international fora. First, before the Special Tribunal in Geneva appointed by the UN to adjudicate upon Pakistan’s claim to enclaves in Kutch. Another was before the International Civil Aviation Organisation at Montreal and later in appeal before the World Court at the Hague when Pakistan claimed the right to fly over India.
Palkhivala was a man of honour and just because of his moral towards protecting the citizen’s fundamental rights, he refused the post of attorney general and of CJI in early sixties’.
All these accomplishments, bear witness to Palkhivala’s excellence, his eminence, his versatility, his remarkable memory. But the consistency of excellence that we properly assign to him lies in his simple human qualities. The first was his ability to support those in need without any show or publicity.
Dr. Badrinath of the famous Shankar Netralaya Hospital in Chennai, Nani was invited to dinner at his house. After the dinner was over, Nani escorted the doctor to his car and gave him a small envelope telling him that this was a token donation to the hospital. Later, when Dr. Badrinath opened the envelope, he found Nani’s personal check for Rs 2 crores. Indeed, a token contribution!
There are many books authored on Nani Palkhivala but the surprising thing is, each book contains something different and auspicious from another book. His work is defiantly a rich gift to India!
LANDMARK JUDGMENTS: Nani Palkhivala has advocated around 143 cases in his entire life span, some important amongst them are written below:
Ujjam Bhai vs. State of UP
In this case, which the Supreme Court thoroughly addressed the extent of judicial review with regard to the powers of the Courts, with regard to certiorari. If the Court finds that the Lower Court has not followed the correct procedure, decided the case on the basis of incorrect facts or wrongly over-exercise control, the Superior Court can annul the decision of the Lower Court.
In this case, the plaintiff carried out a bidis manufacturing company in a number of States, was a trader registered under the UP-Sales Tax Act, and filed a petition under Article 32 of the Indian Constitution, as the State violated its constitutional right to conduct a business.
The Apex Court also noted that a mere error of law committed by a quasi-judicial entity cannot be corrected pursuant to Article 32.
Thus, in the present case, an order of assessment rendered by an authority pursuant to a ‘Taxing Statute’ which is intra-virus shall not be subject to challenge as repugnant to Art. 19(1)(g) of the Constitution on the sole ground that it is based on a misconstruction of the provisions of the Act or a notice provided by the body.
Since, the Tribunal has taken a decision within its jurisdiction and there is no question of quashing the same order, the appeal referred to in Article 32 could also be refused by the Court.
Gujarat University vs. Krishna Rangnath Mudhulkar
In 1949, the Gujrat State legislature enacted the Gujrat University Act under item 11 of list III (now 25 of list III of constitution of India). This act prescribed Hindi or Gujrati as the exclusive medium in which instruction is to be imported in the Gujrat University.
The petitioner (respondent) challenged the validity of the act in ground that it encroaches the power of the union parliament by virtue of item 66 of list I, which gives power to the centre for ‘coordination and determination of standards.
The court held that the power to legislate with respect to medium of education is a necessary incidence of coordination and determination of standards, the state law was held invalid.
Kesavananda Bharati vs. State of Kerala
Kesavananda Bharati is a landmark case and the decision taken by the Supreme Court outlined the fundamental framework of the doctrine of the Constitution. The decision taken by the bench in the case of Kesavananda Bharati was very special and thoughtful. The 700-page judgement provided a remedy for both the right of Parliament to change the legislation and the right of people to defend their constitutional rights.
This judgment was having the largest Constitutional bench ever, i.e. of 13 judges. The Bench has established the Basic Structure Doctrine to safeguard the rights of both the people of India and the Parliament.
The Bench resolved via this solution the questions left unanswered in Golaknath’s case. This case reversed the decision taken in the case of Golaknath v State of Punjab by limiting the power of Parliament to amend the Constitution.
The Basic Structure Theory has been implemented to ensure that the reforms do not strip away the rights of people guaranteed by the Fundamental Rights.
Ahmedabad St. Xavier’s College Society vs. State of Gujarat
In the 1970s, state legislation (education is a subject covered by the Concurrent List in the Seventh Schedule of the Indian Constitution—that is, both central and state governments will legislate on it) gradually violated the rights of minority educational institutions secured by Articles of the Indian Constitution.
In this landmark case, Palkhivala argued that the existing right of the state government to manage an academic institution did not apply to the right of maladministration. The majority of the nine-judgment bench upheld his claim and greatly improved the rights of minorities.
Minerva Mills vs. UOI,
Minerva Mills was a textile industry in the state of Karnataka engaged in the mass manufacture of silk clothing and sold to the general public. The central government. It was believed that the company met the requirements to be listed as a sick industry.
In 1970, therefore, the Central Government formed the Committee of the 15 Industries (Development and Regulation) Act, 1951, to produce a complete detailed report examining the affairs of Minerva Mills. On 19 October 1971, on the basis of the report of the Committee, the Central Government empowered National Textile Corporation Limited (the body under the 1951 Act) to take over the management of Minerva Mills u/s 18A of the 1951 Act.
This landmark judgement was handed down on July 31, 1980. The decision was split in 4:1, Y.V. Chandrachud (then CJI) wrote on his own behalf and (A.C. Gupta, N.L. Untwalia, P.S. Kailsam J.) while Justice P.N. Bhagwati wrote a dissenting opinion.
The majority opposed Section 55 & 4 of the 42nd Amendment as in violation of the basic structure, thereby upholding the Basic Structure Doctrine laid down by Keshvananda Bharti.Bhagwati J. Published a dissenting opinion in the sense that he agreed with the majority on the point of deletion of section 55, although he disagreed with the majority on the point of section 4 of the 42nd amendment.
The Court held that the newly introduced Clause 4&5 had in effect been placed before the courts to consider any challenge as to the validity of the constitutional amendments.
The court held Section 55 of the amendment act 1976 invalid because it firstly made challenge in court impossible &secondly, it eliminates all limitations on Parliament’s powers under Article 368. The Court correctly interpreted the true intent of these new provisions, which was to abolish the limits put on Parliament by Keshvananda case.
Indira Nehru Gandhi vs. Raj Narain
In 1971, Raj Narain was the political contender against Indira Gandhi for Rae Bareilly Constituency, Lok Sabha General Elections. Mrs. Gandhi won the election & congress won the house with a vast majority.
However, following the outcome of the polls, Raj Narain filed a petition before the High Court of Allahabad alleging that Indira Gandhi had carried out malpractice in the elections. On 12 June 1975, the High Court of Allahabad, speaking under the authority of Justice Jag Mohanlal Sinha, found Indira Gandhi guilty of misusing government machinery u/s-123(7) of the Law on the Representative of the Peoples, 1951.
The court therefore held that Indira Gandhi could not continue as Prime Minister of the country, and that she could not contest elections for another six years. Indira Gandhi, aggrieved by this ruling, appealed this decision of the High Court of Allahabad to the Supreme Court. However, SC was on leave at the time and granted a conditional stay on execution on 24 June 1975.
The Supreme Court, while granting conditional stay, directed the parties to appear before it on 11 August 1975, but on 10 August 1975 the President of the Emergency Preparedness – stricken India passed the 39th Constitutional (Amendment) Act, 1971, by inserting Article 329-A, to refuse the Supreme Court’s jurisdiction over the matter.
This amendment made the election of the President, the Prime Minister, the Vice-President and the Speaker of Lok Sabha unjustifiable in the courts of law. Therefore, this 39th Amendment was challenged in the Supreme Court in Indira Gandhi v. Raj Narain.
The Court handed down its decision on 7 November 1975. It must be borne in mind that this was the first case when Kesavananda Bharti’s landmark decision was brought before the supreme court.
The apex court upheld the petitioner’s allegation and ruled the challenged Clause 4 of Article 329A unconstitutional. Also, on a number of grounds, the Court ruled that the 39th (Amendment) Act, 1975, was unconstitutional and violative of the fundamental structure of the Constitution.
Indra Sawhney vs. Union of India
In this case, the supreme court upheld the Mandal Commission’s 27 percent quota for backward classes, as well as the principle that the combined scheduled- caste, scheduled- tribe, and backward classes, as well as the principle that the combined scheduled- caste. scheduled – tribe, and backward class beneficiaries should not exceed 50 % of India’s population. At the same time, the court also struck down the government notification reserving 10% government jobs for economically backward classes among the higher castes.