Addressing the audience in the Tata Theatre at Nariman Point last week, senior Supreme Court lawyer Arvind Datar said, “All of us can say that we can sleep peacefully because we are confident that our borders are protected by the armed forces. And I would equally say that we can sleep peacefully with the assurance that our fundamental rights and the basic structure of the Constitution will always remain secured because of the efforts of one man.”
At the release of ‘Essays and Reminiscences: A Festschrift in honour of Nani A Palkhivala’ on the birth centenary of the eminent jurist, Datar, general editor of the Nani A Palkhivala Memorial Trust, reminded the audience of the “sinister” 42nd amendment to the Constitution that Palkhivala argued against and which was later struck down by the Supreme Court.
“If we believe that the Parliament is always acting by the rule of the people, it is not true. The 42nd amendment to the Constitution was passed, of course unanimously; it contained three things — the first provision said that the central legislature or the state legislature can pass any law and if it contained just a declaration that it was intended to attain the directive principles of state policy, you could not challenge it in any court on any ground, even if that law did not have the remotest connection with directive principles. The second amendment was that the Parliament would have the unlimited power to alter, amend or repeal any part of the Constitution and the last was any amendment to the Constitution either before or after 1976, would never be challenged in any court on any ground. Fortunately this law was struck down,” he said.
The festschrift is a 532-page collection of essays written in Palkhivala’s remembrance, his articles that appeared in newspapers, his correspondences and musings. The book has contributions from 48 authors, including renowned jurists like Fali Nariman, Soli Sorabjee, K K Venugopal, industry leaders Ratan Tata and Deepak Parekh, and former RBI governor Raghuram Rajan, among others.
In his essay ‘Remembering Nani…’, Nariman describes Palkhivala as a “phenomenon”. “It is he who helped save our written Constitution from the ravages of a super majoritarian government and fortunately for the country, he succeeded.”
The annual Nani A Palkhivala lecture was delivered on January 20 by Tata Sons chairman N Chandrasekharan. HDFC chairman Deepak Parekh delivered the vote of thanks. Parekh said, “One, Our Constitution is primarily shaped and moulded for the common man. Two, the great makers of our Constitution clearly intended that the integrity of the Constitution should be preserved against any hasty or ill-conceived changes. And three, with the growing powers of the government all over the world, it is eminently desirable for any democracy to have fundamental rights which cannot be curtailed or abrogated.”
He also said it was as important “not to get too consumed by pessimism” and that the youth of India will see its best days.
The first part of the book contains 19 essays on the subjects of law, taxation law, economics and governance, including on the abrogation of Article 370.
In one of the essays, Rajan writes why persons in power need to tolerate criticism. “If every critic gets a phone call from a government functionary asking them to back off, or gets targeted by the ruling party’s troll army, many will tone down their criticism. The government will then live in a pleasant make-believe environment, until the harsh truth can no longer be denied.”
In one essay, senior counsel and former Advocate General of Maharashtra Darius Khambata writes, “There is no greater patriotism than that born of constitutionalism, and that would include defending freedom for the speech we hate!…..it is equally important to secure a society where there is not only freedom of speech but also the security that there will be freedom after speech.”
Among Palkhivala’s newspaper articles that are part of the book is one titled ‘What should you do, Mr President?’ that appeared in The Times of India on November 23, 1997. Palkhivala wrote, “The President has to ensure that a ‘hung’ Parliament does not result in public morality being hanged…The President has to make such a value-based decision that democracy may survive in India beyond our own times and in the days when our place will know us no more.”
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