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Nanabhoy ("Nani") Ardeshir Palkhivala (January 16, 1920-December 11, 2002), was an
Indian jurist and economist.

Nani Palkhivala
Contents
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 1 Early years
 2 Entry to the bar
 3 To amend or not to amend
 4 Defender of rights
 5 The economist
 6 Recognition
 7 Final days
 8 References

Nani Palkhivala was born in 1920 in Bombay to blue collar, middle-class Parsi parents. His
family name derives from the profession of his forefathers (a common practice among Parsis),
who had been manufacturers of palanquins ("palkhis").

He was educated at Master's Tutorial High School, and later at St. Xavier's College, both in
Bombay. He was a dedicated scholar and excelled even though he was hampered by a bad
stammer. At college, he earned a master's degree in English literature. He overcame his speech
impediment.

Upon graduating, Palkhivala applied for a position as lecturer at Bombay University, but was not
awarded the post. Soon 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, and
he enrolled at Government Law College, Bombay, where he discovered that he had a gift for
unravelling the intricacies of jurisprudence.
[edit] Entry to the bar
Nani Palkhivala was called to the bar in 1944 and served in the chambers of the legendary Sir
Jamshedji Behramji Kanga in Bombay. He quickly gained a reputation as an eloquent and
articulate barrister, and was often the center of attention in court, where students of law and
younger members of the bar association would flock to watch him. His excellent court craft and
an extraordinary ability to recall barely-known facts rendered him an irresistible force.

N Palkhivala initial forté was commercial and tax law. Together with Sir Jamshedji, he authored
what was then and still is today an authoritative work: 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 Nani.

Palkhivala 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 [(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 import (a challenge of the validity of land requisition acts) was lost before the
Bombay High Court.

By 1954 however, barely 10 years after his admission to the bar, Palkhivala was arguing before
the Supreme Court. It was in this, his first, case before that court (concerning the interpretation
of Article 29(2) and Article 30 of the Indian Constitution, which regulate the rights of religious
minorities) that he first articulated his (later) famous statements on the inviolate nature of the
constitution.

[edit] To amend or not to amend

Palkhivala had a deep respect, indeed reverence, for both the constitution, 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 honored while simultaneously being flexible.
Quoting Thomas Jefferson, 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, 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 case [AIR 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 April 24, 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 February 27,
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
amendmnent, 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" 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, a bench of 5 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 were restricted by the Basic Structure
theory. On November 10 and 11, 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 November 12, Chief Justice Ray tersely pronounced that the bench was
dissolved, and the judges rose. In effect, the doctrine was applied to the 39th Amendment of
1975, which attempted, among other provisions, to pass legislative judgment over the 1971
election of Indira Gandhi.

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.

[edit] Defender of rights

Not only did Nani Palkhivala interpret the constitution as a message of intent, he 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 (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 [Bennett 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 [Ahmedabad 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 mal-administer. The majority of the nine-judge bench upheld his contention, significantly
strengthening the rights of the minorities.

[edit] 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 first edition was
published in 1950 when Palkhivala was only 30 years old, and is still in print today (9th edition
in 2004). 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 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 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 and the other by Nani Palkhivala, and Palkhivala's speech was undoubtedly the
more popular and sought after."[1]

[edit] Recognition
Palkhivala received a great deal of recognition from academics, academic institutions and the
government.

In 1963, Palkhivala was offered a seat on the Supreme Court, but declined.[citation needed]

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:[citation needed]
"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 received honorary doctorates from Princeton University, Rutgers University,
Lawrence University, University of Wisconsin–Madison, Annamalai University, Ambedkar Law
University and the University of Mumbai. The laudatio 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...."

[edit] Final days

In the last years of his life, Nani Palkhivala was severely affected by Alzheimer's disease.
According to 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."

Nani was taken critically ill on December 7, 2002, and taken to Jaslok Hospital in Mumbai. He
died on Wednesday, December 11, 2002. He was 82.

[edit] References