Nanabhoy Palkhivala

Nanabhoy "Nani" Ardeshir Palkhivala (16 January 1920 – 11 December 2002) was an Indian lawyer and jurist.

Being lead counsel in cases such as Kesavananda Bharati v. The State of Kerala, I.C. Golaknath and Ors. v. State of Punjab and Anrs., Minerva Mills v. Union of India garnered him international recognition and cemented his reputation as one of India’s most eminent advocates.

Nani Palkhivala was born in 1920 in Bombay in what was then the Bombay Presidency.

His family name is derived from the profession of his forefathers (a common practice among Parsis), who were manufacturers of palanquins ("palkhis").

He was educated at Masters Tutorial High School, and later at St. Xavier's College, both in Bombay.

He was reported to have had a stammer.

At college, he earned his master's degree in English literature.

After graduating, Palkhivala applied for the position of a lecturer at the Bombay University, but was not awarded the post.

He tried to get admission into institutions of higher learning to further his academic career.

Since the admission term was closed for most courses, he then enrolled at Government Law College, Bombay.

Nani Palkhivala was invited to Bar Association in 1946 and served in the chambers of the legendary Sir Jamshedji Behramji Kanga in Bombay.

He garnered the reputation of being an eloquent barrister.

and was often the center of attention in the courts, where students of law and younger members of the bar association would arrive to watch him.

Palkhivala's initial focus was commercial and tax law.

Together with Sir Jamshedji, he authored what was then and still is considered to be an authoritative reference tool for tax professionals: 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 Palkhivala.

Palkhivala's first participation in a case of constitutional significance was in 1951, where he served as the 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 several cases himself, but he lost his first case of constitutional importance (a challenge of the validity of land requisition acts) before the Bombay High Court.

The 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.

By 1954, barely 10 years after his admission to the Bar, Palkhivala was arguing before the Supreme Court of India.

It was in his first case before this court (concerning the interpretation of Article 29(2) and Article 30 of the Indian Constitution, which regulates the rights of religious minorities) that he articulated his (later) famous statements on the inviolate nature of the constitution.

Palkhivala had a deep respect, indeed reverence, for both the Constitution of India 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 favorite quote 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.").

In the process it overruled a decision of a Special Bench of 11 Judges, by a majority of 6–5, on 27 February 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 amendment, 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.

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]:

In the now famous ruling, on 24 April 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 1975, shortly after the imposition of the Indian Emergency, bench of 13 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.

By the order of the Chief Justice of 9 November, on 10 November a Bench of 13 Judges commenced hearing of the review of Kesavananda Bharati case.

The Bench consisted of Chief Justice A.N. Ray, Justices H.R. Khanna, K.K. Mathew, M.H. Beg, Y.V. Chandrachud, P.N. Bhagwati, V.R. Krishna Iyer, P.K. Goswami, R.S. Sarkaria, A.C. Gupta, N.L. Untwalia, M. Fazal Ali and P.M. Singhal.

On 10 and 11 November, 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 12 November, Chief Justice Ray tersely pronounced that the bench was dissolved, and the judges rose.

Between 1977 and 1979, Palkhivala also served as India's Ambassador to the United States.