Nani Palkhivala’s basic structure doctrine shield against rising nationalism

CHENNAI: To put together an edition of uncollected papers and other essays of the renowned Tax and Constitutional lawyer and one of India’s best legal minds, late Nani Palkhivala is no easy task, even if may not be the most favoured public intellectual-type today. This is a special volume coinciding with his birth centenary year (2019-20).

Though Palkhivala’s contributions to the Supreme Court formulating the ‘basic structure’ doctrine as an enduring and fundamental feature of the Indian Constitution which protects its solidity and his lifelong plea to simplify taxes are widely known and acknowledged, Suresh Balakrishnan, a Chennai-based advocate and author, through this very timely publication, has brought to public domain the continuity of his basic positions in the later part of Palkhivala’s life.

As political circles voice apprehensions over a bizarre possibility of rewriting the Indian Constitution, Palkhivala’s penetrating arguments come as a searchlight, to rekindle the liberal lamps. Suresh Balakrishnan’s work seeks to take forward that fond hope to many more who care for the need for a liberal, humane and secular India. The volume is enriched with assorted essays, excerpts from functions Palkhivala participated in, besides personal recollections and anecdotes. The ‘Down Memory Lane’ part of this bright volume interspersed with rare pictures’ is thanks to a special chapter by T. S. Gopal, former assistant secretary of the ‘Forum of Free Enterprise’, Chennai Centre, and Palkhivala’s Man Friday then.

Palkhivala may not have been "Bombay’s answer to Thomas Jefferson", as the ‘Sunday’ weekly magazine sought to taunt him with a scathing article in October 1997 (which is quoted in this volume). "Youngsters will find this hard to believe, but there was a time when Nani Palkhivala was regarded as a middle-class messiah. He was to the 1970s’, what T.N. Seshan and Justice J.S. Verma were to the mid-Nineties," the magazine wrote. His popular speeches on the ‘Union Budget’ were a big draw in major cities. But "the famous legal victories (of his) belong to the past," it underscored while analysing the factors and circumstances in the 1990s’ that led to the deconstructing of this ‘yesterday’s messiah’.

India was beginning to see new icons post-economic liberalisation, but popular memory often ignores or forgets the pre-history, on the persons who made it possible; it goes back to the ideological tussles flagged initially by the Swatantra Party under leaders like Rajaji. India in 1990s’ gave greater visibility to a new crop of public intellectuals like Dr Manmohan Singh, Montek Singh Ahluwalia, Nobel laureate Prof Amartya Sen, to contemporary historians like Rajmohan Gandhi, Ramachandra Guha and writers like Arun Shourie, besides tech-heroes like Dr A P J Abdul Kalam. But all that richness does not take away the merit of the earlier decades’ thought-leaders despite serious differences and less of TV. This is one insightful message that gently wafts through Palkhivala’s uncollected writings.

This socio-political backdrop should help to better read this miscellaneous compendium on the thoughts of Nani Palkhivala in an enduring light. Take for instance, the arguments he advanced in the Supreme Court (cited in this collection) against the 25th Amendment to the Constitution, which according to him "violates the basic scheme and philosophy underlying the Constitution." With remarkable clarity Palkhivala points out how it sought to "subordinate" ‘Fundamental Rights’ to the ‘Directive Principles of State Policy’ and thereby "seeks to wreck the very basic structure of the existing Constitution which makes the Fundamental Rights enforceable in a Court of Law and expressly provides that the Directive Principles are not so enforceable. The Fundamental Rights are clear-cut and precise, in contrast to the vague contours of the Directive Principles." The spirit of that argument is still valid as the new powers-to-be seek to take recourse to the Directive Principles to bring in fundamentally new changes to law and society, like uniform civil code for instance. Palkhivala if alive, will still oppose it.

Another thought process of continuing relevance included in this volume is his rejoinder article in a national newspaper, expressing serious reservations about what is widely known as the ‘Hindutva Judgment’ of the Supreme Court in December 1995, in "Dr. Ramesh Yashwant Prabhoo Vs. Shri Prabhakar Kashinath Kunte & Others." In that article, also part of this volume, Palkhivala’s criticisms against the ‘Hindutva Judgment’ (the judgment by the Bench of three Judges then headed by Mr. Justice Verma), is very simple and forthright: "To say that Hindutva does not involve religious bigotry is wholly irrelevant. The question is very simple. Admittedly, you cannot ask for votes on the ground of religion. Can you get over the prohibition by invoking the same grounds masquerading as Indian culture?" asked Palkhivala.

The fact that the ‘Hindutva Judgment’ was again in the limelight in 2016 when a larger Bench of the Supreme Court declined to revisit it, is sufficient proof on the continuing relevance of Palkhivala’s critique of it. In fact, Palkhivala goes further in that article to stress that, thanks to the ‘S.R. Bommai Vs. Union of India’ case, the Supreme Court has laid down that "secularism forms part of the basic structure of the Constitution." Hence, Palkhivala observed that the "jubilation" over the ‘Hindutva Judgment’ by some political parties "is misconceived".

There are several other little known aspects of Palkhivala’s life and times in this volume: To sample a few, his letter to the former President Dr Sarvepalli Radhakrishnan, his views on the Kashmir issue, Palkhivala’s thoughts on the essential unity of all religions, his spirit of charity and munificence - for instance his generous donation to the Shankar Nethralaya eye hospital in Chennai , a controversial incident when he was India’s Ambassador to the United States, and Palkhivala’s ‘liberal economic outlook’- anti-Marxist but sharing some Keynesian concerns as the author Suresh Balakrishnan suggests. There is also an aside on J. Jayalalithaa wanting to attend Palkhivala’s lecture at the Abbotsbury in Chennai and the irrepressible Cho Ramaswamy unable to ensure a reserved front-row seat for her- make this collection a very illuminating read.