Think what happened if the amendments like there were no court trial against any Prime Minister either in past served for just one day, current or in future, and the term of President would be just 1 year enacted. Yes, you heard it right, these all bills are draft by the government of Indira Gandhi to save herself after the verdict of Allahabad High Court on 12 June 1975 which convict Prime Minister Indira Gandhi for electoral malpractices and debarring holding any elected post falls under this category and the very next day she imposed national emergency by suspending all the Fundamental Rights. But thanks to Nani Palkhivala who stands like a wall in between the government and those laws, and saved our democracy.
Whenever we talk about the great lawyers of India, it is not possible that Plakhivala’s name was not there. He was not just a good lawyer’s, he is also a good man who served his entire life for society and his nation, who rejected the post of CJI for us, a good economist, and a good speaker.
Nanabhoy ‘Nani’ Ardeshir Palkhivala was born on 16 January 1920 in a middle-class Parsi family, in Bombay. His title of Plkhivala derives from his forefather who had been a manufacturer of ‘palkhis'(palanquin). He went to Master Tutorials High School for his early studies, later in ST. Xavier’s College for his higher studies. He was a brilliant and dedicated student. He has a problem of stammering but it can’t hold him back, he excelled. After completing his graduation, he earned a master’s degree in English and thus, overcome his speech impediment. After that, he applied for the post of lecturer at Bombay University but unfortunately was not awarded this post. It is already being late, most courses were closed and he decided to enroll at Government Law College, Bombay, where he gets to know about his real talent that he had a gift for unraveling the intricacies of jurisprudence. He was an excellent and best lawyer in his time.
He entered the court in 1946 and served under one of the legendary Advocates Sir Jamshedji Behramji Kanga in Bombay. He is quick in learning and in a very few time he gained so much reputation. Many students and the young lawyers would flock to watch him. And at the age of 30, he wrote his first book together with Sir Jamshedji Kanga, which was then and still an authoritative work that is ‘ The Law And Practise Of Income Tax.
After just 10 years of practice, in 1954 he fought his first case in the Bombay High Court concerning the interpretation of Article 29(2) and Article 30 of the Indian constitution. That case was related to the rights of Anglo-Indian schools regarding admission through the English medium. He had fought many cases, according to Major Gen Nilendra Kumar in his book Nani Plkhivala: A Role Model has listened to around 140 prominent cases in which Plakhivala appeared. Some of his famous cases are- PJ Irani, Ujjam Bai, Gujarat University, Keshavanandan Bharti case, Minerva Mills, Mandal case, Bank Nationalization, Indira Nehru Gandhi, etc. But the case which is one the prominent case in the history of independent India in which the future of Indian democracy is at stake is Kesavananda Bharti V. The State Of Kerala of 1973 which is also known as the Fundamental Rights case.
Kesavananda Bharti V. State of Kerala
The case was filed by the chief of Edneer Mutt Kesavananda Bharti, a religious institution after the Kerala state government passed the Land Reforms Amendment Act in 1960. According to that act, the government can acquire any land and some of the lands belonged to the Mutt also.
On 21st March 1970, he moved to the supreme court under section 32 of the Indian constitution for his rights which guaranteed under:
Article 25, right to practice and propagate religion
Article 26, right to manage religious affairs
Article 14, right to equality
Article 31, compulsory acquisition of property.
Article 368 of the Indian constitution did not contain any limitation on the power of Parliament to amend any part of the constitution which gives the power to the parliament to alter, amend, abrogate any part of the constitution.
He also challenged the 24th, 25th, 26th, and 29th amendments enacted by the then Prime Minister Indira Gandhi to get over the judgments of the Supreme Court in RC cooper, Madhavrao Scindia, and the Golakhnath case. (In the RC Cooper case, the court struck down the bank nationalization policy by Indira Gandhi and in the Madhavrao case, it had annulled the abolition of privy purses of former rulers).
All these four amendments as well as the Golakhnath judgment was challenged in the Kesavananda Bharti case
Core Question of the Case-
Whether parliament can amend any part of the constitution even fundamental rights also?
Whether the 24th amendment act of 1971 is valid or not?
Whether sections 2(a), 2(b), and 3 of the 25th amendment are valid?
Whether 29th amendment act of 1971 is valid?
Judgment of Supreme court –
13 judge bench which is highest ever till know in the history of India, constitute for the Kesavananda Bharti Case.
After a long process, it was held that Parliament can amend any part of the Indian constitution but not the ‘BASIC STRUCTURE’ of the constitution by a 7-6 verdict.
However, the court did not define the term Basic Structure and listed a few principles that are- Federalism, Secularism, Democracy, as being its part.
The judges who are in majority to deliver the judgment were Chief Justice Of India S.M Sikri, and Justice K.S Hegde, A.N Grover, P Jaganmohan Reddy, A.K Mukherjea, J.M Shelat, and H.R Khanna. And Justices A.N Ray, D.G Palekar, K.K Mathew, M.H Beg, S.N Dwivedi. Y.V Chandrachud dissented.
If the majority of the judge of the supreme court had held that parliament could amend any part of the constitution, India would most certainly become a one-party rule and the constitution would be lost its supremacy. Because the 39th amendment prohibited any challenge to the election of the President, Vice President, Speaker, and Prime Minister, irrespective of the electoral malpractices, which was a clear attempt to nullify the Allahabad High Court judgment against Indira Gandhi and the 41st amendment which prohibited any case either civil or criminal, can be filed against the President, Vice President, Prime Minister or even the Governors, not just in just during their term but forever. It means there we no case filed against anyone of them even they are on that post for just one day. If all these amendments would become part of the constitution, it will surely end the democracy of India. But thanks to Nani Palkhivala who fought for our rights and also thanks to Kesavananda Bharti and those 7 judges who were in the majority, because of them India continues to be the World’s largest democracy.
IT WAS NOT NANI WHO SPOKE. IT WAS DIVINITY SPEAKING THROUGH HIM: By Justice H.R Khanna
Image Source : hindustantimes.com
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