Recounting Palkhivala’s Missed Opportunities on his Death Anniversary
I write this piece in memory of Nani Palkhivala, a courtroom genius, on his death anniversary. His substantial contributions to the constitutional framework of India have been critically acclaimed by numerous luminaries from each section of the society. It has been rightly said by none other than the legendary Justice HR Khanna that “judges would need to take a week to come out of the spell Palkhivala would cast through the powers of his words”. And indeed, his advocacy and contributions have been a glorified exercise in this constitutional law practice.
I am troubled to write just an article on Palkhivala, since I fear it would not do justice to his stature. However, I shall try my best in this exposition. On his death anniversary, I wish to highlight a few cases wherein Palkhivala's absence significantly altered the verdict of the case. Although he did appear in almost all major constitutional law cases of his time, these are the few cases in which he did not, or rarely appeared; and the judgement that followed was also in the averse. This exposition is, however, not a comment on the advocacy of other eminent lawyers, but the remark of one colossal.
The Man who needs No Introduction
However so, I shall begin by introducing the panjandrum in humble words. Nanabhoy Ardeshir Palkhivala, popularly known as ‘Nani’, was actually an English Literature student; it was by accident that he entered into the field of law. He was a student of great academic stature and wanted to be a lecturer of English. However, as things would have it, he enrolled in Government Law College, Mumbai in 1942 and topped in the first and second year of his college. And as Nani would have done it no other way, he secured the highest marks cumulatively and in the individual papers in the Advocate Original Side Examination, which was then considered to be exceedingly difficult.
After an illustrious academic career, he then joined the chambers of Sir Jamshedji Kanga in 1944, the doyen of the then Bombay Bar and a mentor to several leading lawyers, including HM Seervai. It was only a matter of a couple of years until Nani became a leading legal figure, being briefed in almost every matter at the Bombay High Court.
However, the first important constitutional case that he was given the opportunity to argue was State of Bombay v FN Balsara (1951). He was then assisting another doyen, Sir NP Engineer. It was the first case of the Supreme Court where his name was mentioned in the judgement . This was a great honour for a lawyer who had a mere 5 years of experience at the bar to his credit.
We often forget the significance of the numerous cases in which he argued—Bank Nationalisation, Privy Purses, Kesavananda Bharati, etc. But perhaps, it is indubitable that his most significant contribution was the churning of the basic structure doctrine from the Honourable Supreme Court. It is not only his presence that altered the judgement of the case, but also his absence. A few cases have been elaborated below wherein Palkhivala’s presence was severely missed.
Missed Cases and the Basic Structure
Although, to study the Basic Structure Doctrine, the first case that students of law must understand is Shankari Prasad Deo v Union of India(1951), this case does not even mention the said doctrine. However, the case is considered so important because it was in this case that the court upheld the validity of the First Amendment — the Ninth schedule, which stated that any law placed in the ninth schedule could not be challenged as being violative of the Fundamental Rights. Thus, essentially the court held that the amending power of the constitution is unlimited and therefore, the first amendment is valid.
Interestingly, Justice Gajendragadkar (as he then was) had commented in one of his letters that only India had a constitution that consisted of a provision to protect against itself. Notably, one powerful averment that wasn’t argued but could have changed the course of the judgement was the fact that there was an amendment that was raised by K Santhanam and was passed by Sardar Patel, which explicitly enumerated that “Constitutional laws will not be included” under Article 13. However, this amendment was tacitly dropped by the drafting committee, therefore implying that constitutional laws would be a part of Article 13.
This was followed by the case of Sajjan Singh v State of Rajasthan(1964). Although the majority opinion of the bench did not hold that there existed any limitations on the amending powers, the minority judges; namely Justice Hidayatullah and Justice Mudholkar had some reservations. Most interestingly, Justice Mudholkar J. was the first Indian judge to talk about the Basic Structure Doctrine. It was in his dissent that he quoted Justice Cornelius’s opinion in the case Fazlul Quader Chowdhury v. Mohd Abdul Haque judgment wherein he vocalised the Basic Structure theory. Unfortunately, Palkhivala could not attend the proceedings of this case. He loathed waiting in the court and had thought of appearing in the matter on a later day since the matter would go on for a long time. But CJ Gajendragadkar, as he usually did, abruptly ended the hearings and treated the arguments as concluded. It might only be assumed that the decision might have been different if Palkhivala had come earlier.
IC Golaknath v State of Punjab(1967) is another important case wherein Palkhivala did come to argue, but only for one day! He was arguing for India on an international dispute in Geneva and thus had to return immediately. He therefore limited his arguments only to the implied limitations of the amending power.
Interestingly, Nani Palkhivala wasn’t the first person on the side of the bar to argue about the Basic Structure Doctrine. It was MK Nambiar in the case of AK Gopalan v State, 1950 who first argued in favour of the due process of law, and the existence of certain basic features that rendered nugatory any legislative action infringing on the paramount provisions of Part III of the Constitution. But that was regrettably not adopted by the then Constitutional bench. The second time was during the averments of IC Golaknath wherein he cited an article by German Jurist, Dieter Conrad, titled “The Implied Limitations of the Amending Power” to argue about certain implied limitations of the Parliament (This was further relied upon by Nani Palkhivala in the Kesavananda Bharati case). Woefully, this was rejected by Justice Wanchoo as ‘arguments of fear’. Unfortunately, the unholy words of Wanchoo J. were soon going to haunt the country in the coming decades.
The Keshavananda Bharati(1973) case which saved the soul of India’s Constitution by expounding the Basic Structure Doctrine, was argued by Palkhivala for 31 out of the 68 days of hearing. Notably, Palkhivala was not the first choice to argue this case. Many other doyens of the bar such as MC Chagla, CK Dapthary and MK Nambiar were approached to argue in the case. However, all three of them refused to be the lead counsel in the case. Dapthary, in his refusal, humorously cited a Gujarati proverb, meaning that he did not want to put in all the hard work while others reap the benefit. MC Chagla and MK Nambiar, when approached were in frail health, and therefore could not argue for such a long period of time. It was MK Nambiar who then referred Bharati to engage Palkhivala as his counsel. Initially, Palkhivala too, was reluctant to argue in this matter as he had an idea that this was going to be a long hearing. But after long bouts of persuasion from colleagues, mainly from DM Popat, he gave in and it is to his credit that we have this Basic Structure Doctrine, safeguarding our constitution.
Another unknown factoid is the pathetic attempt to review the Keshavananda Bharati case. During the emergency, a 13 judge bench was constituted to review the correctness of the Kesavananda Bharati Case and the Bank Nationalisation case. The arguments went on only for two days before being dismissed by CJ Ray on the third day. In these two days of arguments, Nani Palkhivala was at his finest levels of advocacy, and might I add, it was his presence that saved the soul of the constitution. Behram Palkhivala, his brother, was joined with several members at the Bar as well as on the Bench in saying that it was the finest hour of Nani Palkhivala’s career. Justice Khanna recalled during the review petition that “It was not Nani who spoke, it was Divinity speaking through him.”
One notable bout was when Palkhivala asked that since the petitioners had not asked for any review, how could the bench be constituted? To this, CJ Ray replied that the Tamil Nadu Government had asked for a review. And famously, the AG of Tamil Nadu rose up and said “I beg your pardon, my lord. We never even once asked for a review”.
The last and paramountly important case that felt the absence of Palkhivala was ADM Jabalpur v Shivkant Shukla(1976). It is this judgement that is regarded as the court’s darkest hour. This case was supposedly to decide whether there could be a suspension of Article 14, 19, 21 in an emergency or not. Many of the High Courts had decided in the negative and the Government appeals reached the Supreme Court. It was during this time that Justice Khanna asked the AG Niren De whether a person could be shot without any remedy. De replied that “So long as the emergency prevailed in the country. It shocks my conscience, it may shock yours, but there is no remedy.” The court could do nothing.
It was later revealed by Justice Krishna Iyer that De had taken such a provocative stand, to enrage the judge to take a ‘violent view’ against these submissions.
Unfortunately, the court ruled in a 4:1 verdict against the Indian petitioner with Justice HR Khanna as the sole dissenter. However, what is conspicuous is the absence of Palkhivala in another of these cases of paramount importance. Although he did successfully appear for Ram Jethmalani in front of the Bombay HC, his name does appear in the galaxy of advocates who appeared before the Supreme Court.
His colleagues, namely Soli Sorabjee and other advocates did try to persuade Palkhivala to come to the Supreme Court but to no avail. Palkhivala’s refusal was based on the reason/assumption that there was no way that the Supreme Court would allow the appeals of the government when seven High Courts had delivered outstanding judgements in favour of the citizen. He thought it was an open and shut case and nothing could have been gained, even if he appeared before the Supreme Court. He assumed that Ray and Beg JJ. could hold in favour of the government and Chandrachud and Bhagwati JJ. would rule in favour of the citizen, with Justice Khanna emerging as the ‘dark horse’.
When the judgement was delivered, Palkhivala was in the middle of a meeting in Bombay. The result was absolutely shocking to everyone there, with Palkhivala sitting for a minute in absolute silence. And then he seemed to indulge himself in the meeting to distract himself.
It could be food for thought, whether Palkhivala could have swung the court’s decision in the favour of the citizen, and I believe that he would have asked himself the same question. But as Sorabjee and Datar state in The Courtroom Genius, “it would be presumptuous to imagine that Palkhivala's presence would have made a decisive difference.” The decision was clearly influenced by bigger factors that were at play outside the courtroom than inside.
It is on his death anniversary that we are reminded of his absence in this realm of tumultuous times. I intended to highlight these cases wherein Palkhivala was absent, that followed an adverse outcome, much for the worse. And it is these times where the governments are moving against the citizen. Perhaps in view of this, a new Palkhivala will come out of our midst to rage fire for us — the People and the Constitution.
By Samarth Nayar
Samarth Nayar is a third-year law student at Vivekananda Institute of Professional Studies, New Delhi.