SAVIOR OF MODERN INDIA - NANI A. PALKHIVALA !!

 SAVIOR OF MODERN INDIA - NANI A. PALKHIVALA !!

He was one of modern India’s towering public figures the like of whom this country will not see for many centuries to come. He was an ardent defender of the Constitution, a champion of civil liberties, a farsighted economic thinker, a legendary lawyer and one of India’s most committed intellectuals. As a constitutional lawyer, Nani Palkhivala, in effect, single-handedly defended the constitution – and the citizens it protects in fighting to limit Parliament’s amending power of the basic structure of the Constitution, he defended the fundamental rights of every Indian. INDIA – In his own words….India is eternal, everlasting. Though the beginnings of her numerous civilizations go so far back in time that they are lost in the twilight of history, she has the gift of perpetual youth. Her culture is ageless and is as relevant to the twenty-first century as it was twenty century before Christ. Democracy: As the dwelling place which man has built for the spirit of liberty. A democracy in which the spirit of liberty does not reside is a morgue. The Constitution: The Constitution represents charter of power granted by liberty, and not a charter of liberty granted by power. Liberty is not the gift of the state to the people; it is the people enjoying liberty as the citizens of a free republic who have granted powers to the legislature and the executive. The Constitution is not a jellyfish; it is a highly evolved organism. It cannot be made to lose its identity in the process of amendment. The Kesavananda Bharati Case (Fundamental Rights Case): There are many who believe that if Nani had won only this case and none other in his career, he would still be remembered as one who did the greatest service in the upholding of the constitution. The petitioner Kesavananda Bharati was challenging various amendments to the constitution which had altered the basic structure of the Constitution depriving him of many of his fundamental rights. And arguing his case in the Supreme Court was none else than Nani The case came up before a full bench of 13 judges of the Supreme Court and arguing the case for the petitioner to challenge three constitutional amendments to uphold the Supremacy of the Constitution as against that of the parliament. The hearing began on 31st October, 1972. Nani limited the power of Parliament to amend Constitution: Nani argued that a creature of the constitution, which the parliament is, could not claim the power to go against the basic constitutional parameter. Nani, by the time he had concluded, had spoken for 33 days. He made several brilliant points, some of which reduced to their barest minimum, were following:i Nani's Immortal Arguments: 1. Parliament, in the exercise of its amending power, cannot abrogate or abridge the fundamental rights. These were the basic human freedoms which the people of India had reserved for themselves while giving to themselves the Constitution. 2. The Parliament, in the exercise of its amending power, cannot alter or destroy the basic structure or the essential features of the Constitution. 3. Through amending power, there are inherent and implied limitations on Parliament’s amending power. In a Constitution, what is left unsaid is as important as what is said. 4. The power to alter or destroy the basic structure of the Constitution is an attribute of ultimate legal sovereignty, and that sovereignty rests with the people. But the people are not associated with the amending process at all. Parliament cannot be equated with the people, and Parliament’s will is certainly not the people’s will. 5. Parliament, being the creature of the constitution, cannot be granted unlimited power to make the creature of the Constitution its master, and the master the creature. 6. If Parliament’s amending power is held unlimited, in exercise of that power it can abolish the judiciary and other organs of the state, abrogate all basic human freedoms, and convert