Government’s restrictions cannot abrogate fundamental rights, reiterated Justice Rohinton Nariman at the 16th Nani Palkhivala Memorial Lecture
The contribution of jurist Nani Palkhivala to the cause of safeguarding fundamental rights and civil liberties in India was lauded by Supreme Court Justice Rohinton Nariman at the 16th Nani Palkhivala Memorial Lecture on December 15, 2018 at the National Centre for the Performing Arts (NCPA). Nariman dedicated the lecture to Palkhivala’s recently deceased brother Behram whom he described as "an outstanding author” and a modest individual.
Addressing the gathering of Bombay High Court judges, lawyers, students and others Nariman spoke on how Palkhivala introduced the concept of "basic structure” of the Indian Constitution and how this fundamental section "cannot be abrogated.”
He related how Palkhivala persuaded Swami Kesavananda Bharati, head of the "Edneer Mutt” in Kerala, to challenge the state government’s attempts to impose restrictions on the management of its property. The case was heard for 68 days, the arguments commencing on October 31, 1972, and ending on March 23, 1973. A 13-judge bench of the Supreme Court in the Kesavananda Bharati case accepted his argument that while Parliament has wide powers it could not destroy or weaken the basic elements or fundamental feature of the Constitution.
Top: Kaiwan Kalyaniwalla, Sujata Manohar, Yezdi Malegam and Neeraj Akhoury;
above, from l: Ajeet Singh, Shirin Bharucha, Manohar; Henri Tiphagne, Hoofreez Batliwala, Bharucha
As Justice Hans Raj Khanna had asserted, "The power of amendment…does not include the power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution.”
The Kesavananda judgment also defined the extent to which Parliament could restrict property rights, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted. The case was a culmination of a series of cases relating to limitations to the power to amend the Indian Constitution.
"Freedoms are not absolute,” stated Nariman. They come with limitations. He said the Constitution "is a living document. It has to respond to felt needs.”
Until 1992 judges were appointed after "consulting” sitting judges, Nariman noted. This meant the government could disregard judicial opinion. The nomenclature was then changed to "concurrence,” with the judges to be in agreement with the government’s recommendations.
Introducing Nariman, NPMT (Nani Palkhivala Memorial Trust) chairman Yezdi Malegam said the trust’s first lecture was delivered by Rohinton’s father, Fali, so it was appropriate his "equally talented son” should follow. "There is no better person to talk on civil liberties.” Rohinton’s talk was titled "Guardian Angel of Fundamental Rights.” Banker Deepak Parekh said Rohinton was referred to as "a rock star” judge!
Value of human rights
The NPMT presented two awards: for the Protection and Preservation of Civil Liberties 2018 to lawyer Henri Tiphagne of People’s Watch in the individual category and the Guria Swayam Sevi Sansthan (GSSS) in the organization category.
Tiphagne’s citation stated his "organization, People’s Watch, has actively encouraged and promoted the Institute of Human Rights Education which teaches the value of human rights in over 21 states covering over 15 lakh students, so that this idea can be seeded in the minds of the youth.”
Tiphagne noted that those who worked for civil rights in India were often "denigrated.” Human rights were viewed as an "alien concept” and those who fought for fundamental rights were termed "anti national,” or "urban Naxalites.” Bank accounts were frozen and the teaching of human rights in schools banned.
GSSS’ citation notes the "NGO (nongovernmental organization), has taken up the cause of the deplorable underbelly of our society of human trafficking, sexual exploitation of women and child prostitution which are still prevalent in this, the 21st century.” GSSS founder and director Ajeet Singh, while noting the efforts made to foster civil rights, added "we cannot work with our hands tied.”
Symphony Orchestra of India performing on the occasion at NCPA
Setting standards
Kaiwan Kalyaniwalla, president of the Bombay Incorporated Law Society, also addressed the gathering as it was the Society’s 125th anniversary. "On December 15, 1894, 33 attorneys of the Bombay High Court formed an incorporated society by the name of The Bombay Incorporated Law Society for ‘the purpose of supporting and protecting the character, status and interest of the legal profession generally and particularly of solicitors practicing within the territories under the jurisdiction of the governor of Bombay, as well as to consider all questions affecting the interests of the profession.’ Most importantly, the Society has as its ‘main object to encourage further intensive and specialized study of law by persons desiring to be members of the Society and for that purpose to provide for practical training and conducting examinations.’
"By an amendment effected to the Advocates Act, 1961, with effect from January 1, 1977, the dual system of attorneys and counsel, came to an end and from that day all different classes of legal practitioners were fused into one class, namely, advocates.
"Accordingly, the Law Society amended its existing memorandum and articles to comply with the abolition of the class of legal practitioners till then known as ‘attorneys,’ and to provide for the further study of law by persons desiring to be members of the Law Society and being qualified as a ‘solicitor.’
"The Law Society has since 1977 continued to follow the same standards of training and professional tests and continued to ensure that all examinations are presided over by a sitting judge of the Bombay High Court.”
Tribute to Nariman
Amitabh Kant
Chief executive officer, National Institute for Transforming India (NITI) Aayog, Kant has sent to Parsiana this tribute to Justice Rohinton Nariman.
Justice R. F. Nariman has been a judge of the Supreme Court of India for a period of four-and-a-half years. In this short time, he has delivered landmark judgments in virtually every branch of the law. In constitutional law, his judgment striking down Section 66A of the Information Technology Act has been acknowledged as a classic judgment on freedom of speech. Equally, his judgment recognizing the fundamental right of privacy has not only been acknowledged to be a classic but he has been declared as a hero of human rights the world over by an organization known worldwide for commending the freedom of citizens.
In Shayara Bano’s case, while striking down the Muslim Law of triple talaq, he resurrected the ground of manifest arbitrariness, by which even legislation can be held to be invalid on the ground that it infringes upon equality. In the sphere of Arbitration Law, his judgments are legion. The Arbitration Act, 1996 together with its amendments had received a setback in some earlier judgments of the Supreme Court, but has been put back on track by his judgments, so that the mechanism of arbitration of disputes outside the court system has now become attractive, with arbitration awards largely being upheld by the courts.
He is regarded by many as the father of the Insolvency and Bankruptcy Code where his judgments are said to have benefited the nation by over Rs 90,000 crores. Even in the sphere of Criminal Law, his judgment striking down the bail provision, namely, Section 45 of the Prevention of Money Laundering Act, 2002, is regarded as a landmark judgment. In other spheres also, such as Telecom Law, Electricity Law, Patent and Trademark Law, his judgments are cited not only in India but also abroad. He is a person regarded by the legal fraternity as the most outstanding judge of his generation.