Nani Ardeshir Palkhivala (16 January 1920 – 11 December 2002) was an Indian
jurist
A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal qualification in law and often a legal practitioner. In the Uni ...
and
liberal
Liberal or liberalism may refer to:
Politics
* a supporter of liberalism
** Liberalism by country
* an adherent of a Liberal Party
* Liberalism (international relations)
* Sexually liberal feminism
* Social liberalism
Arts, entertainment and m ...
economist
An economist is a professional and practitioner in the social sciences, social science discipline of economics.
The individual may also study, develop, and apply theories and concepts from economics and write about economic policy. Within this ...
.
[
]
Early years
Nani Palkhivala was born in 1920 in Bombay in what was then the Bombay Presidency
The Bombay Presidency or Bombay Province, also called Bombay and Sind (1843–1936), was an administrative subdivision (province) of British India, with its capital in the city that came up over the seven islands of Bombay. The first mainl ...
. His family name derives from the profession of his forefathers (a common practice among Parsis
Parsis () or Parsees are an ethnoreligious group of the Indian subcontinent adhering to Zoroastrianism. They are descended from Persians who migrated to Medieval India during and after the Arab conquest of Iran (part of the early Muslim co ...
), who had been manufacturers of palanquin
The litter is a class of wheelless vehicles, a type of human-powered transport, for the transport of people. Smaller litters may take the form of open chairs or beds carried by two or more carriers, some being enclosed for protection from the el ...
s ("palkhis").
He was educated at Masters Tutorial High School, and later at St. Xavier's College, both in Bombay. He was reported to have had a stammer .At college, he earned a master's degree in English language and literature.
Upon graduating, Palkhivala applied for a position as lecturer at Bombay University
The University of Mumbai is a collegiate, state-owned, public research university in Mumbai.
The University of Mumbai is one of the largest universities in the world. , the university had 711 affiliated colleges. Ratan Tata is the appointed ...
, but was not awarded the post. Soon he found himself trying to obtain admission to institutions of higher learning to further his academic career. It being late in the term, most courses were closed, so he enrolled at Government Law College, Bombay
The Government Law College, Mumbai, (GLC Mumbai), founded in 1855, is the one of the oldest law schools in Asia. The college, affiliated to the University of Mumbai, is run by the Government of Maharashtra.
Bal Gangadhar Tilak ,Pratibha Pa ...
.
Entry to the bar
Nani Palkhivala was called to the bar
The call to the bar is a legal term of art in most common law jurisdictions where persons must be qualified to be allowed to argue in court on behalf of another party and are then said to have been "called to the bar" or to have received "call to ...
in 1946 and served in the chambers of the legendary Sir Jamshedji Behramji Kanga in Bombay. He gained a reputation as an eloquent barrister
A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...
. and was often the center of attention in court, where students of law and younger members of the bar association
A bar association is a professional association of lawyers as generally organized in countries following the Anglo-American types of jurisprudence. The word bar is derived from the old English/European custom of using a physical railing to separ ...
would go to court to watch him.
Palkhivala's initial focus was commercial
Commercial may refer to:
* a dose of advertising conveyed through media (such as - for example - radio or television)
** Radio advertisement
** Television advertisement
* (adjective for:) commerce, a system of voluntary exchange of products and s ...
and tax law
Tax law or revenue law is an area of legal study in which public or sanctioned authorities, such as federal, state and municipal governments (as in the case of the US) use a body of rules and procedures (laws) to assess and collect taxes in a ...
. Together with Sir Jamshedji, he authored what was then and still is considered to be an authoritative reference tool for tax professionals: ''The Law and Practice of Income Tax''. Palkhivala was 30 years old at the time of the first printing. Sir Jamshedji later admitted that the credit for this work belonged exclusively to Palkhivala.
Palkhivala's first participation in a case of constitutional significance occurred in 1951, where he served as junior counsel in the case ''Nusserwanji Balsara vs. State of Bombay
Bombay State was a large Indian state created at the time of India's Independence, with other regions being added to it in the succeeding years. Bombay Presidency (roughly equating to the present-day Indian state of Maharashtra, excluding S ...
'' 1951) Bom 210 assisting the esteemed ''Sir Noshirwan Engineer'' in challenging several provisions of the Bombay Prohibition Act. Before the year was out, Palkhivala was arguing cases himself, but his first case of constitutional importance (a challenge of the validity of land requisition acts) was lost before the Bombay High Court
The High Court of Bombay is the high court of the states of Maharashtra and Goa in India, and the union territory of Dadra and Nagar Haveli and Daman and Diu. It is seated primarily at Mumbai (formerly known as Bombay), and is one of the ol ...
.
By 1954, barely 10 years after his admission to the bar, Palkhivala was arguing before the Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
. It was in his first case before this court (concerning the interpretation of Article 29(2) and Article 30 of the Indian Constitution
The Constitution of India ( IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental r ...
, which regulate the rights of religious minorities) that he articulated his (later) famous statements on the inviolate nature of the constitution.
To amend or not to amend
Palkhivala had a deep respect, indeed reverence, for both the Constitution of India
The Constitution of India (IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental ri ...
, and for the cardinal principles he saw embedded in it: "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."
Nani saw the constitution as a legacy that had to be honoured while simultaneously being flexible. Quoting Thomas Jefferson
Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Fathers of the United States, Founding Father who served as the third president of the United States from 18 ...
, he said, the constitution must go "hand in hand with the progress of the human mind". He was however a firm opponent of politically motivated constitutional amendments (His favourite quotation was from Joseph Story
Joseph Story (September 18, 1779 – September 10, 1845) was an associate justice of the Supreme Court of the United States, serving from 1812 to 1845. He is most remembered for his opinions in ''Martin v. Hunter's Lessee'' and ''United States ...
, who said: "The Constitution has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, ''the people''.").
The culmination of Palkhivala's success before the Supreme Court came in the famous
''Kesavananda Bharati vs. The State of Kerala
Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (Writ Petition (Civil) 135 of 1970), also known as the Kesavananda Bharati judgement, was a landmark decision of the Supreme Court of India that outlined the basic structure do ...
'' case IR 1973 S.C. 1461, (1973) 4 SCC 225
Parliament had added the Ninth Schedule to the Constitution through the very first constitutional amendment in 1951 as a means of immunizing certain laws against judicial review. Under the provisions of Article 31, which themselves were amended several times later, laws placed in the Ninth Schedule could not be challenged in a court of law on the ground that they violated the fundamental rights of citizens. The protective umbrella covered more than 250 laws passed by state legislatures with the aim of regulating the size of land holdings and abolishing various tenancy systems. The Ninth Schedule was created with the primary objective of preventing the judiciary – which upheld the citizens' right to property on several occasions – from derailing the Nehru government's agenda for land reform, but it outlived its original purpose.
In the now famous ruling, on 24 April 1973, a Special Bench comprising 13 Judges of the Supreme Court of India ruled by a majority of 7–6, that Article 368 of the Constitution "does not enable Parliament to alter the basic structure or framework of the Constitution.". In the process it overruled a decision of a Special Bench of 11 Judges, by a majority of 6–5, on 27 February 1967, that "Parliament has no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights" (''I.C. Golak Nath vs. The State of Punjab'', AIR 1967 S.C. 1643, (1967) 2 SCJ 486) by stating that no specific provision of the Constitution was immune to amendment, but no amendment could violate the basic structure or inner unity of the Constitution.
The court propounded what has come to be known as the "basic structure
The basic structure doctrine is a common law legal doctrine that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature. The doctrine is recognised in India, Bangladesh, Malaysia, Pakistan, and ...
" doctrine, which rules that any part of the Constitution may be amended by following the procedure prescribed in Article 368, but no part may be so amended as to "alter the basic structure" of the Constitution.
In 1975, shortly after the imposition of the Indian Emergency
The Emergency in India was a 21-month period from 1975 to 1977 when Prime Minister Indira Gandhi had a state of emergency declared across the country. Officially issued by President Fakhruddin Ali Ahmed under Article 352 of the Constitution beca ...
, bench of 13 judges was hastily assembled, and presided over by Chief Justice A.N. Ray to determine the degree to which amendments installed by the government of Indira Gandhi
Indira Priyadarshini Gandhi (; Given name, ''née'' Nehru; 19 November 1917 – 31 October 1984) was an Indian politician and a central figure of the Indian National Congress. She was elected as third prime minister of India in 1966 ...
were restricted by the Basic Structure theory. By the order of the Chief Justice of 9 November, on 10 November a Bench of 13 Judges commenced hearing of the review of Kesavananda Bharati case. The Bench consisted of Chief Justice A.N. Ray, Justices H.R. Khanna, K.K. Mathew, M.H. Beg, Y.V. Chandrachud, P.N. Bhagwati, V.R. Krishna Iyer, P.K. Goswami, R.S. Sarkaria, A.C. Gupta, N.L. Untwalia, M. Fazal Ali and P.M. Singhal. On 10 and 11 November, the team of civil libertarian barristers – led by Palkhivala – continuously argued against the Union government's application for reconsideration of the ''Kesavananda'' decision. Some of the judges accepted his argument on the very first day, the others on the next; by the end of the second day, the Chief Justice was reduced to a minority of one. On the morning of 12 November, Chief Justice Ray tersely pronounced that the bench was dissolved, and the judges rose.
Post his resignation, Justice H.R. Khanna (a member of the Bench in Kesavananda Review) praised Nani's advocacy in Kesavananda Review case and remarked 'It was not Nani who spoke. It was divinity speaking through him'.
Justice Khanna and other Judges were of the view that ' the heights of eloquence and advocacy reached by Palkhivala on these two days were really unparalleled and that Palkhivala's feat would perhaps never be equalled in the Supreme Court'.
Seven years later, in
Minerva Mills Ltd. v. Union of India
', 1980) 3 SCC 625 Palkhivala successfully moved the bench to declare that clause (4) of Article 368 of the Constitution which excludes judicial review of constitutional amendments was unconstitutional.
Defender of rights
Not only did Nani Palkhivala interpret the constitution as a message of intent but also saw it as a social mandate with a moral dimension. As he later stated in the ''Privy Purse case'
Madhav Rao Jivaji Rao Scindia vs Union of India
(1971) 1 SCC 85]: "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
Dharma (; sa, धर्म, dharma, ; pi, dhamma, italic=yes) is a key concept with multiple meanings in Indian religions, such as Hinduism, Buddhism, Jainism, Sikhism and others. Although there is no direct single-word translation for '' ...
(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 was a strong proponent of the rights of freedom of expression and freedom of the press. In an attempt to stifle dissenting opinion, the central government imposed import controls on newsprint in 1972. In the case before the Supreme Court ennett Coleman & Co. vs Union of India, (1972) 2 SCC 788 Palkhivala argued that newsprint was more than just a general commodity: "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."
In the 1970s, state legislation (education is a subject covered by the Concurrent list in the Seventh Schedule of the Indian Constitution – i.e., both central and state governments can legislate on it) was increasingly encroaching on the rights of minority educational institutions which are protected by articles in the Indian constitution. In a landmark case hmedabad St. Xavier's College Society vs. State of Gujarat, (1974) 1 SCC 717 Palkhivala argued that the extant right of a state government to administer an academic institution did not extend to a right to maladminister. The majority of the nine-judge bench upheld his contention, significantly strengthening the rights of the minorities.
Prominent Cases
Major Gen Nilendra Kumar in his book Nani Palkhivala: A Role Model (published by Universal/Lexis Nexis) has listed 140 prominent cases in which Nani appeared, giving the name of parties, citation, opposite counsels, the name of the judge who delivered the verdict and brief of the law points involved. Notable cases in the list are PJ Irani, Ujjam Bai, Gujarat University, Article 143 matter on immunity of state legislatures, Keshavnanda Bharti case, Birla Cotton, Bank Nationalization, Privy Purses, Harbhajan Singh Dhillon, Bennet Coleman, St Xaviers College, Indira Nehru Gandhi, Minerva Mills, Mandal case and TN Seshan matter of Chief Election Commissioner.
The economist
Although Nani Palkhivala was one of the leading interpreters of constitutional law and a most ardent defender of the civil liberties guaranteed by the constitution, his legacy also includes
the aforementioned authoritative book, ''The Law and Practice of Income Tax'', which he co-authored with his mentor ''Sir Jamshedji Behramji Kanga''.
Although anyone who deals with the convoluted mess that is the Indian tax code will invariably regard the work as a primary reference, the tome has also secured international recognition and served as a tax law draft guide at the International Monetary Fund
The International Monetary Fund (IMF) is a major financial agency of the United Nations, and an international financial institution, headquartered in Washington, D.C., consisting of 190 countries. Its stated mission is "working to foster globa ...
. The first edition was published in 1950 when Palkhivala was only 30 years old, and is still in print today (10th edition in 2014). Sir Jamshedji, who is listed first as author, gracefully acknowledged that the credit belongs to Palkhivala.
Former Attorney-General Soli J. Sorabjee, Nani's friend and colleague for many years, recalls: "His talent in expounding the subject was matched by his genius in explaining the intricacies of the Budget
A budget is a calculation play, usually but not always financial, for a defined period, often one year or a month. A budget may include anticipated sales volumes and revenues, resource quantities including time, costs and expenses, environmenta ...
to thousands of his listeners. His famous Annual Budget speeches had humble beginnings in 1958 in a small hall of an old hotel called Green Hotel in Bombay. He spoke without notes and reeled off facts and figures from memory for over an hour keeping his audience in rapt attention."
Describing the Annual Budget meetings, Sorabjee goes on to say: "The audience in these meetings was drawn from industrialists, lawyers, businessmen and the common individual. Nani's speeches were fascinating for their brevity and clarity. His Budget speeches became so popular throughout India and the audience for them grew so large that bigger halls and later the Brabourne Stadium
The Brabourne Stadium is a cricket ground in Mumbai in Western India, built in the British Bombay era. It was the home ground of the Mumbai men's and women's cricket teams. It can accommodate 50,000 people for sports matches. The ground is owne ...
in Bombay had to be booked to keep pace with the demand of an audience of over 20,000. It was aptly said that in those days that there were two Budget speeches, one by the Finance Minister
A finance minister is an executive or cabinet position in charge of one or more of government finances, economic policy and financial regulation.
A finance minister's portfolio has a large variety of names around the world, such as "treasury", " ...
and the other by Nani Palkhivala, and Palkhivala's speech was undoubtedly the more popular and sought after."
Books authored
* ''Law and Practice of Income tax''
* ''Taxation in India''
* ''The Highest Taxed Nation''
* ''Judiciary Made to Measure''
* ''Our Constitution Defaced and Defiled''
* ''India’s Priceless Heritage''
* ''Essential Unity of all Religions''
* ''We, the people''
* ''We, the Nation''
Recognition
Palkhivala received a great deal of recognition from academics, academic institutions and the government.
In 1963, Palkhivala was offered a seat in the Supreme Court, but declined.
In 1968, he was offered the position of Attorney-General by Govinda Menon, then the Law Minister in the Congress Government. Palkhivala recounts in his book ''We the Nation'': "After a great deal of hesitation I agreed. When I was in Delhi I conveyed my acceptance to him, and he told me that the announcement would be made the next day. I was happy that the agonising hours of indecision were over. Sound sleep is one of the blessings I have always enjoyed. That night I went to bed and looked forward to my usual quota of deep slumber. But suddenly and inexplicably, I became wide awake at three o'clock in the morning with the clear conviction, floating like a hook through my consciousness, that my decision was erroneous and that I should reverse it before it was too late. Early in the morning I profusely apologised to the Law Minister for changing my mind. In the years immediately following, it was my privilege to argue on behalf of the citizen, under the same Congress Government and against the government, the major cases which have shaped and moulded ..constitutional law ..
Nani Palkhivala was appointed Indian Ambassador to the United States
The Indian Ambassador to the United States of America is the chief diplomatic representative of India to the United States, housed in the Embassy of India, Washington, D.C. The current ambassador is Taranjit Singh Sandhu who succeeded Harsh Vard ...
in 1977 by the Janata government
The premiership of Morarji Desai extended from 24 March 1977 to 15 July 1979. In the 1977 Indian general election Morarji Desai led the Janata Party to victory against the Congress party. Upon taking office, Morarji Desai became the first India ...
(the first non-Congress Government in India) headed by Morarji Desai
Morarji Ranchhodji Desai (29 February 1896 – 10 April 1995) was an Indian independence activist and politician who served as the 4th Prime Minister of India between 1977 to 1979 leading the government formed by the Janata Party. During his ...
and served in the capacity till 1979. He received honorary doctorates from Princeton University
Princeton University is a private university, private research university in Princeton, New Jersey. Founded in 1746 in Elizabeth, New Jersey, Elizabeth as the College of New Jersey, Princeton is the List of Colonial Colleges, fourth-oldest ins ...
, Rutgers University
Rutgers University (; RU), officially Rutgers, The State University of New Jersey, is a Public university, public land-grant research university consisting of four campuses in New Jersey. Chartered in 1766, Rutgers was originally called Queen's ...
, Lawrence University
Lawrence University is a private liberal arts college and conservatory of music in Appleton, Wisconsin. Founded in 1847, its first classes were held on November 12, 1849. Lawrence was the second college in the U.S. to be founded as a coeducation ...
, University of Wisconsin–Madison
A university () is an educational institution, institution of higher education, higher (or Tertiary education, tertiary) education and research which awards academic degrees in several Discipline (academia), academic disciplines. Universities ty ...
, Annamalai University
, logo = CampusmapofAU.jpg
, image = Annamalai University logo.png
, image_size = 225px
, motto = "With Courage and Faith"
, established =
, type ...
, Ambedkar Law University and the University of Mumbai
The University of Mumbai is a collegiate university, collegiate, State university (India), state-owned, Public university, public research university in Mumbai.
The University of Mumbai is one of the largest universities in the world. , the un ...
. The
laudation
' from Princeton called him "... Defender of constitutional liberties, champion of human rights ...", and stated, "he has courageously advanced his conviction that expediency in the name of progress, at the cost of freedom, is no progress at all, but retrogression. Lawyer, teacher, author, and economic developer, he brings to us as Ambassador of India intelligence, good humour, experience, and vision for international understanding...."[Sorabjee, Soli J. (2003]
ebc-india.com
Final days
In the last years of his life, Nani Palkhivala was severely affected by what may have been Alzheimer's disease
Alzheimer's disease (AD) is a neurodegeneration, neurodegenerative disease that usually starts slowly and progressively worsens. It is the cause of 60–70% of cases of dementia. The most common early symptom is difficulty in short-term me ...
. According to former Attorney-General Soli J. Sorabjee, who had known him for many years, "it was painful to see that a person so eloquent and articulate unable to speak or recognize persons except occasionally in a momentary flash."[India, Nnlrj. (21 February 2010]
Nani Palkhivala , Law Resource India
Indialawyers.wordpress.com. Retrieved on 2018-11-15.
Nani was taken critically ill on 7 December 2002, and taken to Jaslok Hospital in Mumbai. He died on 11 December 2002. He was 82.
References
External links
* ttps://web.archive.org/web/20080511213249/http://www.bombaybar.com/in_memoriam/nani_palkhivala.php ''Bombay Bar Association: In Memoriam''
''The Fundamental Rights Case : Propositions submitted before the Supreme Court'' by N.A. Palkhivala
''My tryst with the legendary N. A. Palkhivala'' by H. S. Serna, IRS
''Speech of Nani Palkhivala on 24th–26th Amendments''
When I die ...
{{DEFAULTSORT:Palkhivala, Nanabhoy
1920 births
2002 deaths
Ambassadors of India to the United States
Indian barristers
20th-century Indian economists
20th-century Indian lawyers
Parsi people from Mumbai
University of Mumbai alumni
Recipients of the Padma Vibhushan in public affairs
Scientists from Mumbai
Indian autobiographers
Indian male writers
Politicians from Mumbai
Indian legal writers
Scholars from Mumbai