Nani Palkhivala and the Basic Structure

Advocate Amit A Pai

16 Jan 2023 9:02 AM GMT

  • Nani Palkhivala and the Basic Structure

    “Freedom is not something that you can inherit in your bloodstream… You have to fight for it, cherish it, preserve it all the time.” - Nani Palkhivala The evolution of the basic structure doctrine would only be complete with the phenomenon of Nani Palkhivala. Born 103 years ago to the day on the 16th of January, Palkhivala would be one of our country's...

    “Freedom is not something that

    you can inherit in your bloodstream…

    You have to fight for it, cherish it,

    preserve it all the time.”

    - Nani Palkhivala

    The evolution of the basic structure doctrine would only be complete with the phenomenon of Nani Palkhivala. Born 103 years ago to the day on the 16th of January, Palkhivala would be one of our country's most outstanding lawyers and defenders of civil liberties. Between 1972 and 1980, the basic structure doctrine came to the fore on three occasions, and Palkhivala was at the forefront of defending our Constitution. Although not his first choice, Palkhivala was destined to take to the law and become one of the greatest ever lawyers to walk the corridors of our Courts. His legacy as a defender of civil liberties is unmatched. But above all, his humility and greatness as a human were unparalleled. Not only did he distinguish himself as a top-class constitutional lawyer, but he also was a Diplomat and served as the Indian Ambassador to the United States.

    The decision of the thirteen Judge Bench of our Supreme Court about half a century ago in Kesavananda Bharati[2] has become sacrosanct to our Constitutional history and the Court. And Palkhivala’s contribution as the principal lawyer for the Petitioners is unmatched and very well documented. It was Palkhivala who persuaded the Court to read limitations within the power of Parliament to amend the Constitution and devised the basic structure doctrine. Commenting on the decision in Kesavananda Bharati, Palkhivala wrote:

    "Logically speaking, the limit to the amending power should be that the Constitution cannot be made to suffer a loss of identity through the amending process. The identity of the Constitution is the sum of its essential features. Therefore, if the Constitution is not to suffer a loss of identity, each of its essential features has to be preserved.”[3]

    The Court faced severe criticism for the decision from some who thought that Parliament was supreme and the Court had no power to restrict the plenipotentiary Parliament to amend the Constitution. The immediate victim of the decision was the independence of the judiciary – with the three senior-most Judges (who had held in favour of the citizen) being superseded, and the fourth senior Judge, Justice A.N. Ray ascending to the Chief Justiceship of India. The fundamental fallacy in the criticism of the basic structure doctrine was the ignorance of the power of judicial review – what Dr. Ambedkar thought was the most important part of our Constitution, and obliviousness to Constitutional Supremacy over Parliamentary Supremacy. After all, Parliament is a creature of the Constitution.

    It was a little more than two years after the basic structure doctrine was born, democracy in India was attacked. It is not an exaggeration to say it survived because of the decision in Kesavananda Bharati. After the Allahabad High Court unseated Prime Minister Indira Gandhi in an election petition filed by her nemesis Raj Narain, she moved the Vacation Judge in the Supreme Court, Justice Krishna Iyer, in appeal. Prime Minister Indira Gandhi retained Palkhivala. However, she got only a partial stay of the disqualification and was not allowed to vote in Parliament. Smarting under her disqualification, the Prime Minister imposed the infamous Emergency – and incarcerated her political opposition. Palkhivala, shocked at the turn of events, immediately returned the Prime Minister’s brief. The Government of the day sought to amend the Constitution – with the sole aim of retrospectively saving the Prime Minister’s election and thereby setting to zero the decision of the Allahabad High Court and rendering the appeal before the Supreme Court infructuous. With the entire political Opposition in Parliament, the 39th Amendment was enacted and given effect to within five days! Fortunately, the basic structure doctrine was applied by the Constitution Bench, and a part of the 39th Amendment was struck down for breaching the rule of law – which was a part of the basic structure of the Constitution. The judgment of Indira Gandhi[4] was pronounced on the 7th of November 1975, and astonishingly, three days after, a Constitution Bench of thirteen Judges was constituted by Chief Justice Ray to review Kesavananda Bharati. On the eve, Palkhivala wrote a personal letter to the Prime Minister requesting her not to proceed with the Review.[5]

    Opposing the review, Palkhivala again led the charge and argued that no Review Petition had been filed, and nobody had sought a Review of the decision. As recorded by Prashant Bhushan, Palkhivala argued:

    “When we argued the Kesavananda Bharati case, we were told that the possibility of misuse of power was only hypothetical and we should trust our elected representatives. Today the misuse of power is no longer a hypothetical possibility. It is a stark reality….”[6]

    After hearing arguments on the 10th and the 11th of November, an embarrassed Chief Justice Ray unceremoniously dissolved the Bench – the relief of many. Palkhivala was at his finest during his arguments. In his memoirs, Justice H.R. Khanna noted:

    “…In one of the most impassioned addresses he said that no case had been made for reconsideration of the matter, more particularly at that time when the Emergency was in full force. He added that there could be such a time no full discussion not full reporting of the arguments. He also challenged the press to report what he said in court. My feelings and of some of colleagues was that the heights of eloquence to which Palkhivala rose on that day had seldom been equaled and never surpassed in the history of the Supreme Court.”[7]

    Finally, in Minerva Mills[8], Palkhivala’s brilliance was on full display. While the 44th Amendment reversed most of the infamous and destructive 42nd Amendment, the addition of clauses (4) and (5) to Article 368 remained. The amendment was "for removal of doubts" on Parliament's exercise of constituent power to amend the Constitution. What was also on the challenge was the amended Article 31C – which virtually negated the entire Part III of the Constitution in favour of Part IV while eviscerating judicial review. The amended Article 31C was also a legacy of the 42nd Amendment. Palkhivala argued that what was remaining of the 42nd Amendment was a tool for the destruction of democracy and the establishment of an authoritarian regime.[9] Palkhivala succeeded, and the majority struck down the amendments, for they violated the Constitution's basic structure. Nani Palkhivala’s legacy is much more than his contribution to the basic structure doctrine's evolution, protection, and expansion. However, the legacy of the basic structure doctrine is incomplete without Palkhivala.

    After half a century, which is almost two-thirds the age of our Republic, the question of challenging the correctness of the basic structure ought to be repelled. Since the 24th of April 1973, the basic structure doctrine has been expounded by our Courts, and to challenge at this length of time, would be a direct challenge to the power of judicial review and to the rule of law. One needn’t look very far to see what the fate of our democracy without the basic structure doctrine would be – one only needs to look at the 42nd Amendment – the amendment which sought to constitutionally put authoritarianism at the wheel. Seldom has the Court struck down constitutional amendments over the last half a century, employing the basic structure doctrine – contradicting any argument that the Court is usurping Parliament’s Sovereign powers. Without an appreciation of the pedestal that the power of judicial review is placed on in the constitutional scheme, and the constitutional exigencies which compelled the Court to restrict Parliament’s power to amend the Constitution, any attack on the basic structure doctrine would be rather ignorant. In Palkhivala’s words,

    “Article 368 cannot be read as expressing the death-wish of the Constitution or as a provision for its legal suicide.”[10]

    Over the years, the basic structure doctrine has proved to be very much a part of our constitutional culture and is revered. For over forty years after Minerva Mills, the basic structure doctrine has remained unchallenged. More recently, a Bench of nine Judges of the Court in I.R. Coelho[11] unanimously upheld the virtues of the basic structure doctrine. Over the years, the constitutional creativity of the Court has ensured that the basic structure doctrine flourishes, and it is a tribute to the legacy of Nani Palkhivala.

    The author is Advocate on Record, The Supreme Court of India.

    [2] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225

    [3] N.A. Palkhivala, Our Constitution Defaced, and Defiled, MacMillan, Second Ed., 1975, Page 150

    [4] Indira Gandhi v. Raj Narain, 1975 Supp SCC 1

    [5] See T.R. Andhyarujina, The Kesavananda Bharati Case – The untold story of the struggle for supremacy by Supreme Court and Parliament, Universal Law Publishing Co., 2011 Ed., Pg. 145. Andhyarujina termed this letter as being of “doubtful propriety” (See Pg. 94).

    [6] Prashant Bhushan, The Case that Shook India: The Verdict that led to the Emergency, Penguin Viking, 2017 Ed., Pg. 277.

    [7] H.R. Khanna, Neither Roses Nor Thorns, EBC, Lucknow, 2018 Reprint, Page 80.

    [8] Minerva Mills v. Union of India, (1980) 3 SCC 625

    [9] Soli J. Sorabjee & Arvind P. Datar, Nani Palkhivala – The Courtroom Genius, LexisNexis Butterworth Wadhwa Nagpur, 2012 Reprint, Page 180

    [10] N.A. Palkhivala, Our Constitution Defaced and Defiled, MacMillan, Second Ed., 1975, Page 150

    [11]I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.

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