The passing of senior Supreme Court lawyer Fali Nariman on February 21 provoked fulsome tributes paid to him by the Chief Justice of India, Prime Minister Narendra Modi and several eminent commentators in the media and society. This also brings to mind another extraordinary now forgotten counsel of the Bombay Bar — Nani Palkhivala — who left perhaps a greater stamp and impress upon Indian polity and society.
Prior to the mid-1960s, it was received wisdom that under Article 368, Parliament with a two-thirds majority could enact legislation to alter or amend any provision of the Constitution. Accordingly in the 1950s, the Congress party enacted several laws, especially legislation imposing land-holding ceilings and transference of ownership rights to tenants.
However in Golak Nath’s Case (1967), Palkhivala persuaded the Supreme Court to rule that it was beyond the power of ephemeral Parliaments to alter or abridge fundamental rights — the ‘seven freedoms’ — conferred upon citizens by Part III of the Constitution. Moreover in the landmark Keshavnanda’s Case (1973) he persuaded the Supreme Court to rule that Parliament — no matter how great the majority of the ruling party — cannot alter the basic structure of the Constitution.
Palkhivala was born into modest circumstances and worked his way up in the legal profession and industry the hard way. He also served as a director of the Tata Group for several decades.
This perhaps proved his Achilles heel. In 1977 when the post-Emergency Janata Party government was formed in Delhi, the party’s nomination as MP from the prestigious Bombay South constituency — and post of Union finance minister — was his for taking.
But perhaps because he had too much to risk — he declined. Ditto in 1981. Had he entered politics, the economy liberalisation and deregulation reforms of 1991 would have been enacted a decade earlier. After a prolonged illness, Nani Palkhivala passed away in 2002. Nariman’s demise is a good occasion to remember Palkhivala whose brilliant advocacy secured the fundamental rights and basic structure of the Constitution for the citizenry in perpetuity.
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