On Nani Palkhivala's 101st birth anniversary, a case for him to be awarded Bharat Ratna

India would probably be a dictatorship, if not for Nani and a ‘Bharat Ratna’ is the least we can do to honour the man

Swapnil Tripathi January 16, 2021 06:13:37 IST
On Nani Palkhivala's 101st birth anniversary, a case for him to be awarded Bharat Ratna

Nani Palkhivala on a stamp. Wikimedia Commons

The 16th day of January marks the 101st birth anniversary of Nani Palkhivala, arguably India’s greatest lawyer and the man who saved India’s democracy. During Indira Gandhi’s rule and particularly the infamous Emergency in India, Nani was the unrelenting force that attacked the government and its policy in the courtrooms. His most significant contribution to India was during the Kesavananda Bharti litigation, ie the case which gave us the basic structure doctrine.

The government had passed the 24th Constitutional Amendment that would practically allow it to completely change the Constitution. It was the excellent advocacy of Palkhivala that convinced a bench of 13 Judges (seven agreeing with him) that there were certain basic features of the Constitution that cannot be amended by the Parliament. This was called the doctrine of basic structure. Nani’s brilliance can be understood from the fact that the only basis for his arguments was an article authored by a German scholar Professor Dietrich Conrad.

It is little known, that the battle to save the Constitution did not end here. Few months later, an attempt was made to reconsider the decision and another 13-judge bench was constituted. However, Nani saved the Constitution yet again. He argued for over two days that the basic structure doctrine should not be overruled and relied on a proposed Constitutional Amendment to make his point. He carried a copy of the proposed 41st Constitution Amendment Bill which proposed that any person who has occupied the position of the president, vice-president or governor cannot be tried for any crime in a court of law. Palkhivala pointed out the absurdity of the law by stating that even if a person occupied these constitutional positions for a day, she/he could not be tried for the rest of her/his life. He stressed on the need for the basic structure doctrine to act as a check on such amendments.

The constitution of this bench was dubious as well as nobody knew who made the request for a reconsideration. At one point, somebody asked Chief Justice AN Ray who constituted this bench. The chief justice looked at Palkhivala and said, you did. Palkhivala responded with an emphatic no, asking why he would challenge a decision in his favour. Ray then stated that the State of Tamil Nadu had asked for a review, to which the advocate-general of the state (who was fortunately present in court) responded that the state stands by the judgment. Similar was the response from the Advocate-General of the State of Gujarat. This exchange made the other judges realise, that the bench was constituted at the behest of Ray himself, who arguably wanted that the decision in Kesavananda Bharti be overruled. On the third day of the hearing, Ray came to the courtroom and simply announced, ‘Bench dissolved’ and walked out.

Nani’s advocacy in the case can be best summarised in the words of Justice HR Khanna, who remarked ‘It was not Nani who spoke. It was divinity speaking through him.’

Nani’s contribution to the nation was not restricted to the courts. He was known for organising his annual Budget speeches, where he would break down India’s Budget for the common citizens. The speech that started in a hotel in Bombay would one day be organised in the jam-packed Brabourne Stadium in Mumbai. Nani believed that the law should be understood not just by judges and lawyers but by the masses as well. In fact, he used to famously say that ‘My speeches will be considered successful only when that unknown little man who is interested in it comes to know of it and is enabled to attend it. Who knows? One day he may become the Prime Minister of India.’ And as luck would have it, one of them actually did. At a public meeting in January 1997, the then-prime minister HD Deve Gowda stopped his speech and addressed Nani by saying, ‘Sir, I used to be a listener of your speeches in Bangalore and I respect you’.

These are few of the many contributions of Nani to our nation. His story is not just a journey of the man who saved the Constitution but also an inspiring tale of a man who overcame all odds. His story shall inspire generations to not let their circumstances, humble beginnings and disability get in the way of their success. The very Nani who drafted the best written submissions the Court has ever seen, struggled with a writer’s cramp all his life and could not complete his BA, MA and even LLB examinations without a scribe.

The Bharat Ratna which is the nation’s highest civilian award, was introduced in the year 1954 and is bestowed on an individual for her/his exceptional service in the field of advancement of art, literature and science, in recognition of public service of the highest order or performance of the highest order in any field of human endeavour. The award is conferred by the president, however, the decision on the recipients is taken by the prime minister alone.

The central government has never conferred the Bharat Ratna on a lawyer for her/his contribution to the nation. Some previous recipients have been lawyers but the award was not made for their contribution in that capacity. Nani is Bharat’s True Ratna (India’s Real Gem) whose contributions have not been recognised like they should. India would probably be a dictatorship, if not for Nani and a ‘Bharat Ratna’ is the least we can do to honour the man.

The author is a lawyer by profession. He is currently reading for a Bachelor of Civil Law degree at the University of Oxford

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