Remembering Nani Palkhivala on his death anniversary

On December 11, 2002, a banner flew high on Marine Drive, Mumbai which read “We the Nation, We the People, have lost a Legend.”

Belonging to a middle-class family, Nani Palkhivala was born on January 16, 1920, and spent his childhood at Nana Chowk, Bombay. Nani’s father ran a laundry at Cumballa Hill and was the first person to influence him as a child. Nani’s father was no less than a perfectionist and loved his work passionately, so much so that foreign residents using the laundry service would leave their costly clothes with him in order to get them cleaned and receive them when they return to India. This taught Nani to do his work, no matter how big or small, with the skill of perfection.

Eighteen years ago on this date, we lost the best Attorney General this country never had. At that time, there were two annual speeches which people used to attend - one was the Finance Minister's and the second was Nani Palkhivala’s Budget speech at the Bombay stadium, where he used to review the annual Financial Budget.

Justice HR Khanna was not wrong in saying,

“If a count were to be made of the ten topmost lawyers of the world, I have no doubt that Mr. Palkhivala’s name would find a prominent place therein. We find his words echoing in our memory and leaving a trail of pleasant remembrance.”[1]

Nani was offered the Chief judgeship of the Apex Court in the 1960s, which he declined. If he had accepted the proposal, he would have become the longest serving CJI till date between 1971 to1985.[2]

Nani did his schooling from Master’s Tutorial High School in Bombay and was a passionate reader ever since his childhood. He would often save a little money to buy second-hand books from his favourite spot, the Popular Book Depot on Lamington Road. Jehangir Palkhivala, Nani’s nephew, narrates one such incident of his childhood where Nani would wake up in the middle of the night and dress up himself in school uniform. He would say to his father “Pappa, I want to go to school”, to which his father very patiently replied, “Go tell your mother.” Nani’s enthusiasm for education and reading was so well-grounded that even his early barrier of stammering didn’t stay with him for too long.

After completing his matriculation, Nani completed his MA in English Literature from Xavier’s College. Being a great reader and an excellent orator, he applied for the post of Lecturer in Bombay University but didn’t get appointed, as some other lady was given the post. That is how he joined as a Professor of Law in Government Law College, Bombay. He later offered dinner to the lady professor as a gesture of being grateful to have opened the horizons of studying law for him.

Being a first generation lawyer himself, he was successful in joining the office of historic Jamshedji Kanga in 1944. Little do people know, Nani gave tuitions during his school and college days in order to minimize the financial load on his father. His first ever job was of a journalist with a salary of Rs. 15 per month. He used to write articles and columns on a variety of topics in newspapers which got public attention in a small amount of time.[3] He was such a perfectionist in everything he did that he was merely 13 years of age when his first article got published.

The marvellous Palkhivala and his qualities

Palkhivala was one of the most compassionate lawyers the Indian fraternity has ever seen. MR Pai, in his book The Legend of Nani Palkhivala, narrates one such incident of his compassion. Once, Nani’s father gave him a plate full of almonds and asked Nani to not forget the poor boy living next door who couldn’t afford a plate of food. Nani immediately offered that plate full of almonds to the boy without thinking once. That is how Nani inculcated a habit of always reserving some portion of his food for his servants.[4]

Coming to his oratory skills, he was known for his ability to speak at a public platform for hours without referring to a single note of written text. His outstanding book, We, the People - India, The Largest Democracy, touches upon the concepts of education, democracy, socialism, taxation and other constitutional issues in the most elaborative and beautiful manner. In one of the chapters, while discussing the “Sentinels of Democracy”, Nani had written,

“A lawyer by his training and equipment and by his professional competence is better qualified than the rest of the citizenry to take an active part in the making of laws and formulation of public policies. He would be failing his country if he did not do this duty.”[5]

Nani, the legal crusader

Nani was known for his sharp and crisp memory, which he used for his arguments and his art of story-telling within the four walls of the courtroom. One document that is testament to this, is the affidavit of Nani Palkhivala in the Bhopal Gas Tragedy case, in support of Union Carbide Corporation’s motion for dismissal on forum non conveniens grounds. He stated,

”The Indian system is undoubtedly capable of evolving the law to cope with advances in technology in the unfolding future. If the Bhopal litigation represents an opportunity for the further development of tort law in India, that chance should not be denied to India merely because some might say that the American system is ahead in development.”[6]

In the historic case of RC Cooper v. Union of India, the main element which was settled down was the ‘mutual exclusivity’ theory, which was laid down in the AK Gopalan case. Nani played an important role in discarding the Court’s narrow view of ‘mutual exclusivity’ which was tabled with the idea that if one fundamental right is violated then the individual cannot claim the violation or protection of the other. Hence, rejecting the observations made in the AK Gopalan case, the Supreme Court rightly observed:

“This case has formed the nucleus of the theory that the protection of the guarantee of a fundamental freedom must be adjudged in the 'light of the object of State action in relation to the individual's right and not upon its influence upon the guarantee of the fundamental freedom. and as a corollary thereto, that the freedoms under Arts. 19, 21, 22 & 31 are exclusive-each article enacting a code relating to protection of distinct rights.”

The unreported victory: Kesavanada Bharati review

When the Indira Gandhi government was on the verge of getting the Kesavananda Bharati case overruled by the Supreme Court, Nani came to the rescue, not only in the courtrooms. He wrote a letter to Prime Minister Gandhi, in which he expressed his unwillingness to side with the government on its decision to challenge the verdict. In the letter, Nani observed -

"I beseech you, dear Indiraji, to consider the consequences of seeking to have the judgment in Kesavananda case overruled. We have reached a historic moment when two roads diverge in the woods and our own decision at this juncture can have an imponderable impact for the good of the country. Please forgive me or inflicting this long letter on you. I would not have done so but for my conviction that you always have an open mind and that your decision can save the Constitution, ensure the onward march of the nation on our chosen path, prevent several months of waste of the court’s time. Parliament’s amending power to be limited, but it is based upon my belief that it would be a great gesture on your part to withdraw the state’s plea for unsettling the law."[7]

It is not a very known fact that an attempt was made to review the Kesavananda Bharati decision. Fortunately, it was Nani who defended the basic structure doctrine n the courtroom that day. It is pertinent to refer to one of the court room exchanges between Nani and Justice Iyer during the course of hearing.[8] A query on censorship of the written orders of court proceedings was laid forward by Justice Iyer, to which Nani Palkhivala replied,

"Yes, there are, had we have enough documentary evidence to prove it to the hilt. The Delhi High Court’s judgement on the habeas corpus petition of Mr. Nayar was not allowed to be published. It was BBC which reported parts of it, which I am saying now also will not be reported in tomorrow’s newspapers due to censorship. If I say anything about the recent amendments in public, I shall probably be arrested. In fact, the only place where there is any freedom of speech in this country is the few hundred square feet of various courtrooms. In fact, I am very grateful to the government for giving me the opportunity of expressing my views in the court."

To this, Justice Iyer observed,

“You should thank that Court for this.”

References:

[1] The Courtroom Genius, foreword by Behram A Palkhivala, by Soli Sorabjee & Arvind Datar

[2] Supreme Whispers - Conversations with the Judges of the Supreme Court of India 1980-89 by Abhinav Chandrachud.

[3] A Role Model edited by Major General Nilendra Kumar, Universal Law Publishing Co, 2010, page 185.

[4] The Legend of Nani Palkhivala by MR Pai, 2002, page 18, para 2 (travelling incident) - The Legend of Nani Palkhivala by MR Pai, 2002, page 19.

[5] We, The People - India The Largest Democracy, NA Palkhivala, 1984.

[6] Affidavit dated December 18, 1985 of Nani Palkhivala in support of defendant UCC’s motion for dismissal on forum non conveniens grounds - reproduced in Upendra Baxi and Thomas Paul - Mass Disasters and Multinational Liability:The Bhopal Case, NM Tripathi, 1986 222 at 225

[7] The lengthy letter of Palkhivala is reproduced in Nani A Palkhivala — A Life, by MV Kamath pp. 190-94

[8] The Clumsy Attempt to Review Kesavananda Bharati, Nani Palkhivala - The Courtroom Genius by Soli J Sorabjee & Arvind Datar pp. (150)