Nanabhoy Palkhivala - To Amend or Not To Amend

To Amend or Not To Amend

Palkhivala had a deep respect, indeed reverence, for both the constitution, 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 favourite quotation 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.").

The culmination of Palkhivala's success before the Supreme Court came in the famous Kesavananda Bharati vs. The State of Kerala case :

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.

In the now famous ruling, on April 24, 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 the process it overruled a decision of a Special Bench of 11 Judges, by a majority of 6-5, on February 27, 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 amendmnent, 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.

In 1975, shortly after the imposition of the Indian Emergency, a bench of 5 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. On November 10 and 11, 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 November 12, Chief Justice Ray tersely pronounced that the bench was dissolved, and the judges rose. In effect, the doctrine was applied to the 39th Amendment of 1975, which attempted, among other provisions, to pass legislative judgment over the 1971 election of Indira Gandhi.

Seven years later, in Minerva Mills Ltd. v. Union of India, Palkhivala successfully moved the bench to declare that clause (4) of Article 368 of the Constitution which excludes judicial review of constitutional amendments was unconstitutional.