LAW RESOURCE INDIA

Constitution Not Parliament is Supreme

Posted in CONSTITUTION, COURTS, DEMOCRACY, JUDICIAL ACTIVISM, JUDICIARY, JUSTICE, SUPREME COURT by NNLRJ INDIA on January 27, 2010

THE PUBLIC IN THE REPUBLIC SERIES – 60 YEARS OF INDIAN REPUBLIC / INDIAN EXPRESS JAN 26 2010

KESAVANANDA BHARATI, 1973 Attorney General Goolam E. Vahanvati remembers NANI PALKHIVALA, the legendary jurist who argued India’s greatest case NANI PALKHIVALA’S career as a lawyer is almost synonymous with the evolution of Indian democracy and our legal system after Independence. His excellent oratory, his grasp of fact and law, his memory…there are not enough words to describe him. Needless to say, he was unarguably the best lawyer that this country has produced. But, more than all these factors, it was his humility and his urge to side with what was right that made him what he was.I remember, as a young lawyer when I used to meet him or assist him in cases, he would tell me to learn the importance of saying no. “Goolam, as you grow in the profession, people, some of them very important, would try to dump cases on you. Don’t let them do so.

NANI PALKHIVALA

NANI PALKHIVALA

Never accept conflicting briefs,” he would tell me. I remember, in the Bombay High Court, judges would tell Nani that after hearing him argue, they felt hypnotised and required time to break the spell that his words cast on them. One judge asked him if he actually knew the art of hypnotism! Nani being Nani replied in jest that he couldn’t reveal his trade secrets. When dealing with matters big–or small–he devoted single-minded concentration, never allowing anything to break it. I remember two interesting matters where Fali Nariman led the argument with me as his co-counsel while Nani appeared from the other side involving Morarji Desai. We won both. Towards his later part of life, Nani was upset with the way India was unable to make that most important shift from being a thirdworld country to a first-class country. He was so emotional about anything about India that even in foreign courts, where I appeared alongside him, he would never accept anything said against India.

In 1944, after getting his law degree, Nani, who came from a very humble background, took the Advocate Original Side (OS) exam, a very tough task. That year, only two candidates passed. 40 years later, Nani sent me a newspaper cutting about the result of the exam–the only other person who had passed along with Nani in 1944 was my father. Along with the cutting, there was a note which said, “You would like to keep this”.

I have often said that I have information that when God creates a Parsi, he takes a lot of time as he wants the product to be unique. But, he took much longer while creating Nani because he wanted to create a person who was going to be unique and immortal.

Much of how we view our Constitution, the law and the judiciary today is a gift from Nani. For he was the firstbig,infactthebiggest,nameinthisfield,somebody whodefinedandlaiddowntheparameterswithinwhich ourthen-newly-drafted-Constitutionwouldwork.

I have yet to see another lawyer who is equally at ease in Constitutional law, tax matters, criminal law or corporate law. When he was dragged to the Madras High Court on charges of infringing upon the copyright while writing his book–The Law and Practice of Income-Tax–Rustomji Gargat appeared for him. Rustomji loved to tell the story of how Nani gave his evidence–the case was as good as over after the evidence. During cross-examination, Nani drew upon his immense memory to reel off full chapters, line-byline, even giving page numbers and other literature.

Few youngsters today would know the spell that Nani cast over his huge audience in his Budget speeches. Nani was peerless as an advocate because he had the knack of putting across his point in the simplest of words, leaving judges convinced about the veracity of his case.

Such was his humility that sometimes, when he forgot to get his own lawyer’s gown–as senior lawyer he was entitled to wear a gown different from the ordinary lawyers — he would simply request some junior to lend him his gown. But, once inside the courtroom, Nani was different; leaving no stone unturned to clinch the matter.

The writer is the Attorney General of India

CASE

Kesavananda Bharati v. Union of India, was decided by the Supreme Court in 1973. The 13-judge bench that heard this case is the largest ever assembled in India’s judicial history.

JUDGMENT

By a narrow majority of 7-6, the court laid down that there were core parts of the Indian Constitution which could never be amended by Parliament. This `basic structure’ of the Constitution consisted of free and fair elections, judicial review and equality among others.

However, on the question of whether the right to property was part of the basic structure, the court held in the negative.

IMPACT

The decision was a blow to Prime Minister Indira Gandhi, who responded by superceding the three seniormost judges of the Supreme Court (who had ruled with the majority) when it came to the appointment of the next Chief Justice. The case is seen as the most decisive moment in India’s constitutional history. In rejecting the idea of absolute parliamentary sovereignty, the decision has restrained the undue expansion of executive powers.

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