How Nani Palkhivala Would Have Viewed Economy, Lawmaking And Supreme Court – Arvind Datar

If Nani Palkhivala were alive today he would have been deeply disappointed that the Supreme Court has not stood up as a bulwark of fundamental freedoms, says Arvind Datar, senior advocate and editor of a festschrift that celebrates the legendary lawyer’s birth centenary. Datar is referring to the apex court’s handling of recent habeaus corpus cases and those centered on fundamental rights, including the internet ban in Kashmir.

On the occasion of his birth centenary, the Nani A Palkhivala Memorial Trust is launching a festschrift — a collection of essays written in his honour, reminisces of persons who interacted with him and a few articles written by Palkivala himself. The book has been edited by Datar, who has also co-authored Nani Palkhivala: The Courtroom Genius with noted jurist Soli Sorabjee.

Palkhivala was “a man of many parts and he painted on a wide canvas which covered jurisprudence, literature, sociology, economics, history, religion and much more,” says the preface of the book. True to that it includes many of his newspaper articles on literature, poetry and even prohibition — with one written in 1937, when he was just 17 years old.

In this interview, Datar talks about the constitutionalist, tax and economy expert and business leader — whose absence is most sharply felt at this tumultuous time in India’s democracy.

Watch the full interview with Arvind Datar here...

On the cover page of this wonderful book you write — that Nani Ardeshir Palkhivala “almost single-handedly, saved Indian democracy by ensuring that the Basic Structure of the Constitution of India remained inviolate.”

Arvind Datar: We should not just see the basic structure but see the run up to it. It started with a series of constitutional amendments and by the time we finished 15 years of Independence, the Constitution was amended 17 times and in the next three years, it was amended another 15 times. So, then the question arose how far can you can to amend the Constitution. We first had the bank nationalisation case then, then the ‘Privy Purses’ case, then we had the Keshavananda Bharati case where the Supreme Court said yes, Parliament can amend Constitution, but it cannot alter the essential features which we popularly call the basic structure.

For example, you can’t destroy the secular nature of India, you can’t destroy the parliamentary nature of democracy. The right to free speech is part of our basic structure, your TV channels are working only because of the basic structure. So, his contribution was enormous and we forget that although the basic structure was laid down in 1973, in the Emergency there was an attempt to nullify this judgment. By saying that no amendment to the Constitution could be challenged by any court on any ground and all amendments done from the beginning were continued and deemed to be valid. So, this was the kind of draconian nature of law that was there in the Emergency just about 40 years ago.

To give you a flavour, the Constitution was amended to make sure that the elections of the Prime Minister could not be challenged. If you are a governor or a prime minister or a president for one day, you got immunity for life. You could not be sued or be prosecuted even if you committed murder. So, these were the kind of changes made by Parliament unanimously at that point of time in the Emergency. So, we now realise that if we did not have the basic structure what path the Indian democracy would have taken. And that’s why I said “single-handedly” because the case went on for more than 40 days and he argued for almost 27 or 28 days referring to Constitutions from around the world. It was a spectacular effort. Mind you, he succeeded very narrowly — just by 7 is to 6. It was just one decisive vote of Justice HR Khanna that saved democracy along with Palkhivala.

Would you describe Mr. Palkhivala as a constitutionalist?

Arvind Datar: Yes, I would describe him as a constitutionalist who held the Constitution very dearly. After all what is the Constitution in any country — it gives the architectural framework of the society which the Constitution seeks to have. We have a parliamentary democracy; we have a right to freedom: we have all these rights, and these are all protected by the Constitution. We have one of the longest Constitutions and I think it’s a superb document. It took three years to draft this Constitution as you know with inputs from so many eminent people. It is a magnificent document and I think it’s the right time to celebrate what one man did to save this beautiful document.

This book could not have come at a better time — when we need reminding of our constitutional values. You’ve been so intimate with the man’s work and the way he viewed the Constitution. How do you think he would have viewed what’s going on right now? The politics, the lawmaking. And the growing belief that a majority government is at liberty to substantially amend a Constitution.

Arvind Datar: I think he would’ve been quite worried and perturbed because of two things. One is the complete neglect of the economy because he was very concerned about the economy. When socialism was very fashionable, he kept on saying that look, this is a disastrous path and we must shift to a free market. He was the President of the Forum of Free Enterprise and ultimately, he proved right when in 1991, the reforms came.

If you talk of the recent amendments and so on, I feel perhaps Palkhivala would have felt that before passing any law through Parliament hastily, it would have been better to refer to a Parliamentary Committee, get opinions from different stakeholders and get opinions from citizenship. Nobody can justify an illegal immigrant who comes into India. Nobody can stay here illegally. But then there are ways of dealing with it and I think he would have been concerned with the manner in which the laws are pushed through with little thought or with little consultation with the stakeholders. That would’ve bothered him. The essence of democracy is to take all rival points into view and then fashion a law that is acceptable to everybody or acceptable to most people. At least, the process of consultation should be there.

If he were alive today, I think he would have been equally concerned with the manner in which some rights have been trampled upon and primarily, with the way, in which the majority government is passing laws without referring it to the proper process of parliamentary democracy. Mind you, when we talk of a majority government, they may have a majority in Parliament, but it is not necessary that the entire country agrees with you. Rightly or wrongly, India is a pluralist society. We have a large section of Muslims, Christians and so on. You have got to take them onboard, consult with them. I don’t think most of these people also support any illegal migration. But then, you could’ve consulted them and passed the law in a much better way.

You think Mr. Palkhivala, would have put his eloquence to good use in the Supreme Court right now if he was around to witness what is happening with the Citizenship Amendment Act and the protests from many quarters of the society?

Arvind Datar: Yes. I think he would’ve been perturbed. He would’ve asked for a better consultation. He would have pointed out certain provisions of the law. The Citizenship Amendment Act is not all bad as it is made out to be. There are certain provisions that could’ve been certainly tweaked and amended and sorted out the problem. For example, you have got the Foreign Tribunals Act, you have other provisions that can check illegal immigration.

In your opinion, how would he have viewed the Supreme Court and its functioning today? The delay in hearing habeas corpus cases. The very fact that it took us five months to listen to petitions regarding the internet ban in Kashmir. How would he have viewed the functioning of the Supreme Court decision now?

Arvind Datar: I think he would have been very deeply concerned. For example, this internet ban. There is no point in saying that it is a part of the right to free speech. The Supreme Court could’ve gone just one step further and said, banning of the internet is simply not permissible. It cannot be permitted at the border area or some area with a high security risk. I don’t see a case in any civilized country you can ban the internet throughout an entire state for months on end. That absolutely indefensible. The Supreme Court today, should have gone by that. I am sure having read many of his works and so on, he would have been deeply disappointed that the Supreme Court has not stood up as a bulwark of fundamental freedoms and struck down this internet ban saying that yes, it can go on for two-three days in the case of an emergency but it cannot go on as a way of life. I mean, just imagine a large section of people just doesn't have the internet, which is as important today as perhaps, oxygen.

Your selection from within his own writings is an interesting selection. It spans his love for literature. It also reveals his sharp humour. For instance he writes in a November 1945 column titled The Law Emulates The Tortoise: Ante-Diluvian Traditions.

“Man may or may not be a rational animal but he is certainly a pugnacious animal. Quite a few litigants are determined to fight to the last court of appeal. That delays the final disposal of the suit and gives point to the dictum that though the law is not an ass, many a litigant is.”

In another one from March 1946 titled Denigration Of The Lawyer, he writes

“Whenever a community of men have desired to form an ideal society, they have invariably sought to do away with the lawyer.”

I can cite many such instances — how did you go about selecting the pieces?

Arvind Datar: That’s a very interesting story. As far as these articles are concerned, they were found in his house by his grandniece Statira Ranina. When she was going through the records after he passed away, she found a huge collection of old articles and I have some original articles with me right now and they are completely in tatters. She sent them to Mr. Divakara, who was the secretary-general of the Forum of Free Enterprise, an institution Nani was very close to and Mr. Divakara took the trouble of typing 480 pages of all the articles. He got them typed because some of them were not readable, and he had a very difficult task. In fact, my wife helped in choosing the important articles.

You mentioned The Law Is A Tortoise I would recommend to all readers to read his article on Charles Dickens, called Dickens’ Land and he had written this when he was just 18 years old. The remarkable love for literature and the way he covers the entire aspect of Charles Dickens, his entire life and his novels. It is a beautiful piece. So, what we did was, we said look these are all writings of a 17-year-old or an 18-year-old or a 20-year-old boy. We finally selected the few which basically reflected his love for literature, his opposition to prohibition in those days, his very serious concern with the law and a large number of articles which we left out were written between 1939 and 1945. Most of them deal with his opposition to Nazi Germany and the violation of human rights and the treatment of the Jews. It is remarkable how much he wrote about that, but they could not be included due to space constraints. So, we omitted that.

His writings were very prolific and most of those newspapers or periodicals are no more. We went to the Tata Archives and all his writings are preserved in 73 boxes. We chose 20-25 important letters which he wrote to people. I find that he was a very prolific letter writer. He would write letters to various people on different topics. If he found that a particular law was not proper, he immediately wrote to Madhu Dandavate, he wrote to Gujral, he wrote to Manmohan Singh and said this is not correct, please do something about it. So, that is one lesson which we all can learn as citizens. Not just to complain and keep quiet but make ourselves heard right to the concerned people. Surprisingly, most of them replied to him immediately. So, it was a wonderful experience going through his old letters and his articles. I hope you enjoyed reading all of them.

I did. I want to end with the correspondences you have included in the book. One stayed with me most. His letter to Soli Sorabjee when Mr. Sorabjee was appointed Attorney General. Palkhivala says in the letter that “the greatest glory of the attorney general is not to win cases for the government but to ensure that justice is done to the people”. That spirit that Mr. Palkhivala articulated in that letter about officers of the court, the legal system itself, that spirit seems to need a desperate rejuvenation in India?

Arvind Datar: Absolutely and I think he quotes a plaque in the U.S. Supreme Court which says the U.S. wins when justice is done. It’s not about winning the cases but making sure that justice is done to citizens. You are absolutely right. In fact, in many of his articles, you find an extensive quotation of poetry. He must have loved poetry a lot because he quotes poems almost at the drop of a hat everywhere.