Nani A. Palkhivala - A Tribute
The fag end of 2002 inflicted a severe blow to the Legal Profession in the sad demise of Shri Nani A. Palkhivala, a multi-faceted personage. However, he would always remain alive through his immortal works, words of wisdom and invaluable contributions. In the passing away of Shri Nani A. Palkhivala, the legal fraternity has lost a Czar among the luminaries in the profession. Shri S. Rajaratnam, a Member of the Editorial Board of Corporate Law Cases pays a befitting Tribute to the ever living legend, Shri Palkhivala.
Nani A. Palkhivala, who was described as a living legend, has now become a part of our history leaving behind his footprints in the sands of time. He will be remembered not only as an eminent scholar, orator and a lawyer, but also as a person who has made significant contribution in strengthening our Constitution playing a major role at critical times of our history. He had waged marathon battles before the Supreme Court to sustain what he considered worthy of being saved in our Constitution. He will be long remembered for his arguments in Privy Purse case, Bank Nationalisation case and Fundamental Rights case (Keshavananda Bharathi case (AIR 1973 SC 1461)). His arguments before the Bench of 13 Judges in the aborted hearing for review of the latter case were so persuasive, that the Bench was dissolved prior to decision with all but the Chief Justice a loner declining review thereby salvaging the Constitution braving hostile executive pressure. His arguments before the International Court of Justice and elsewhere, fervent pleas on public issues from time to time and budget speeches before large appreciative audiences will all be remembered for long time to come.
A fitting homage to him is to recall not only his contributions, but the views he had about the future of this great country.
He was a rare intellectual, who was not afraid to do or speak on every occasion necessitating it. He wanted integrity of the Constitution and the fundamental rights to be preserved and fostered. His attack on Emergency both on the corridors of the Supreme Court and before the people was an act of rare courage. He has gone on record that the Emergency continued 21 months even after the Keshavananda Bharathi case (AIR 1973 SC 1461), defacing and defiling the Constitution, thanks to the erroneous judgment in ADM Jabalpur v. Shukla (AIR 1976 SC 1207), described by him as “the lasting ignominy of the Supreme Court”, denying “habeas corpus” even in a case of an illegal or mala fide detention, with the lone dissenting voice of Justice H. R. Khanna, who paid the price by his supersession but by his fearlessness made possible for India to live as a free democracy. In a fitting tribute to the Judge, Mr. Palkhivala pointed out that the post of Chief Justice would not have added any more lustre to him than what he will be remembered for his contribution.
Mr. Palkhivala was the defender of our Constitution because of the values it represents. He wanted people to remember the Emergency, so that it may not repeat itself. He pointed out, we may not have another Jayaprakash Narain to save us again, if we were to relax our vigilance and relapse to a situation, where we hand it over back to the power holders, power seekers and power brokers, who have potential for trivialising it. We have to put the disgrace of Emergency not only behind our back but also its possibility in future.
Mr. Palkhivala was a devout Parsi, admirer of the Prophet Zarathushtra, but he was equally at home in Vedas, Bible, Koran, teachings of Guru Nanak, Aurobindo, Vivekananda, Sankaracharya and Satya Sai. Essential unity of all religion was his message every time he had occasion to speak on the subject. He wrote : “An enlightened spirit would go straight to the truth behind the dogma, the religion behind the ritual, the essence behind the trappings”.
His concern for the poor and the weak was only matched by his consistent attempt to shape an economic policy, which he felt was moving away from them. He pointed out the need for transition from feudal age to the modern age, demolition of outdated values of feudalism, birth, wealth, position and power and transform the caste-ridden society into modern one. He believed in moral values and the need for motivation. He pointed out that poverty is cruel, but it is curable and that the only known cure is “economic pragmatism instead of woolly ideology”.
He pointed out the countless avenues of development and the potential which India has for growth, immense manpower, superb skills and enterprise, which are to India as rich as oil to Middle East with the difference that oil is a depleting wealth, while human resources is a thriving one. The greatest enemy of India, according to him, is not Pakistan, but our own dangerous vulnerability, because of our internal weaknesses, our total lack of discipline, our indifference as to the need for education, our tolerance for the grinding poverty, our failure to attend to the problems of population, equal disdain and neglect of both the destitute young and helpless senior citizens, lack of courage of people, who can contribute for the change, but do not do so. It was his repeated regret that because of lack of political will and courage, we do everything to stifle initiative.
He believed that education as a great solvent and that the nation’s power ultimately depends less on financial wealth, than on its grey matter. His constant pre-occupation was not only with moral and spiritual regeneration, but also even elementary education for the uneducated and the art of reading and development of mind for the educated. He considered female education as a priority of priorities. He pointed out that South Korea’s pre-eminence in economic development could well be due to its 98% literacy and attributed the progress of Singapore because it gave highest priority to education. If the education is further delayed, he felt that the Nation is not only at risk but in dire peril. But at the same time, he regretted that the present education lacks moral motivation, tending to be value-neutral. The lesson from ancient India is that man is more than man and that there is more to the world than the world. Ancient Nalanda, Taxila and other Indian Universities attracted men from all over the world, but the trend is now reversed, since we have very little to offer to ourselves and much less to the world.
He wanted revival of ancient values Satya, Dharma, Shanti, Prem and Ahimsa, which are the five ideals of the Satya Sai Institute as guiding factors for our future. He quoted Elliot as to what was his idea of education in following words :
“Where is the Life we have lost in living?
Where is the wisdom we have lost in knowledge?
Where is the knowledge we have lost in information?”
His earnest plea for judicial reform, so as to ensure even handed and prompt justice for all citizens has yet to take shape. He felt that legal profession stands largely commercialised. He was very harsh on the greed of lawyers. In a lecture on 125th Anniversay Celebrations of Bombay High Court, he pointed out to the low esteem at which the lawyers presently stand in society and the need for the lawyer to educate himself and help to establish the rule of law by paying attention to training and development. He wanted the legal profession to act as a catalyst and advised that it should recognise that the responsibilities for making the law supreme was lying heavily on its shoulders and that the future history of the country depends upon the role of the lawyer.
All his life, he was highly critical of bureaucracy because he expected much from them. His eternal regret was that it contains a lage pool of talent, expertise, education, more than what private sector or any other segment of society commands, but this highly gifted members of civil service act with more intelligence than imagination. All over the world, it is the country’s fourth great pyramid, guaranteeing only societal inertia, but proliferating rapidly and inexorably to no purpose.
For Mr. Palkhivala his pre-occupations with tax laws were his first love and he saw the world and the country through the window of his tax practice. It is there, he found the poor quality of administration. He regretted that our bureaucracy lacks courage and it is too willing to compromise. He described many of the members of bureaucracy as “boneless wonders” for their pliability, lack of intellectual integrity and prompted to act more on expediency without any sense of perspective or values. He regretted that bureaucrats are the unacknowledged legislators of India. In his judgment, the quality of public administration is at an all-time low and that India has never been governed so badly. Quoting a sarcastic comment on Bihar that “nothing moves there except the river Ganges”, he regretted that Indians are “a low arousal people” enduring injustice and unfairness “with feudalistic servitude and anaesthetized patience”. He found that the tax administration sought to enforce tax compliance by myriad rules and notifications beyond count or care with poor treatment for the taxpayers. He observed with his characteristic sense of humour mixed with agony that “if taxpayers were dogs, officials of the Finance Ministry would undoubtedly be convicted under the Prevention of Cruelty to Animals Act”. He described the income-tax law as a national disgrace, an instance of Indian jurisprudence mutilated by thousands of amendments, an example of tragedy of waste, waste of national time, energy and manpower with the intelligence of tax gatherers, taxpayers and tax advisers squandered away “in grappling with the torrential spate of countless amendments, feverish activity, which is no more good than fever. It is an indigestible verbiage leading to flood of litigation”.
In his numerous articles and lectures, there is hardly a subject which Mr. N. A. Palkhivala did not deal with and did not embellish. Every piece shows his scholarship and his humanity, a rare combination.
Mr. Palkhivala in his attribute to his senior Sir Jamshedji B. Kanga has described him as a person having an intellect enough to succeed without industry and industry enough to succeed without intellect, but he combined both making himself not only an effective person but a lovable figure because of the sunshine around his heart. This complement fits Mr. Palkhivala as well. His speeches and his writings will continue to be a source of inspiration, so that he will live as long as anyone has any concern, which he himself had, for the good of the country.
Silly is you in a natural state, and serious is something you have to do until you can get silly again.
—MIKE MYERS on “Inside the Actors Studio” (Bravo)
Author Name: S. Rajaratnam
