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Nani Palkhivala

NANI PALKHIVALA
January 16, 1920 — December 11, 2002

MR GE VAHANAVATI
Advocate-General of Maharashtra

Mr Rafique Dada, President of the Bombay Bar Association; Mr Rohit Kapadia, Vice-President of the Bombay Bar Association; Mr Iqbal Chagla, former President and a leading member of this Bar, Mr Gautam Patel and members of the family of Mr Palkhivala as well as all my colleagues of the Bombay Bar Association.

When Gautam called me last week and said that the Bombay Bar Association was going to have a reference for Nani, I instinctively told him that there is going to be a full court reference for him. Gautam said that notwithstanding a full court reference, the Bombay Bar Association wants to give a reference to Mr Nani Palkhivala because he belonged to us. As usual, Gautam was right and I bowed to his judgement.

When I reflected on this matter, I realized that there were many claims on Nani Palkhivala. But the Bombay Bar Association had a special claim and we were entitled to claim from him as one of us and we were entitled to be as proud of his achievements as we were jealous of the other claims on him.

The whole world justly had a claim on Nani Palkhivala. He was such a multi-faceted person with so many achievements and this is something we are not going to come across for a very, very long time.

In December 1999 when I just took over as Advocate-General, there was a function to felicitate Nani at which Dr Alexander, then Governor of Maharashtra spoke and one of the things which he said was quite novel and quite apt. He said Nani was the best Finance Minister this country never had. To that I would like to add that Nani was probably the best Law Minister this country never had. And if I can extend this further, Nani was undoubtedly the best Attorney-General this country would have ever had.

So that was Nani for you. An incredible person with so many aspects of his character that it becomes very difficult when one is trying to give a tribute to him to decide which aspect of his character one would like to emphasize and bring out in a reference. But there are three aspects of Nani which I would like to touch upon and all three aspects of which I can claim to have some personal knowledge and experience.

The first was his incredible memory. Rustomji Gagrat told me of how Nani gave evidence in the Madras High Court when he was challenged with regard to his famous book “The Law & Practice of Income Tax”. Rustomji told us how Nani gave evidence and how he was extensively cross-examined and how he stood up to the cross-examination and rattled off passages from judgements with names, years and citations correct to the T.

Years later, when he was ambassador of this country to the United States, and when he gave a series of lectures at various American universities, I am told that the Americans were dumb-founded. For here was this man, standing in front of them giving a speech full of quotations, full of statistics; not a scrap of paper in front of him. I believe it was decided once to check it out whether there was any error in what he said. And the truth of the matter is that they couldn’t fault him to a comma or a full-stop.

The same happened when he gave speeches on the Budget. I know for a fact that he used to keep shutting himself up for a few days and would prepare the speech with great effort but when he delivered it, the entire audience was spellbound. If a man can make something as dry as Budget so meaningful and attract such a tremendous audience then we are talking of an extraordinary human being.

The second aspect of Nani was his advocacy. Advocacy is not something which comes easily. Advocacy is a gift of God and the important thing about advocacy is that you have to communicate. When you are standing there before the judge, you have to make your point of view known and understood. Nani had this remarkable gift of making his argument sound so simple and communicated so well that the judge was completely spellbound.

But there is another aspect of his advocacy which I doubt if any other advocate will ever be able to emulate and that was the spellbound attention which he got from the judge. One of the reasons was that when he addressed the Court, he communicated with the judge. He caught his eye. He caught his attention. And he dominated his brain.

This was Nani Palkhivala. This was the advocacy of Nani Palkhivala which made everything so different.

The third quality of Nani which I would like to mention is the incredible humility of the man which I have experienced at first-hand. When we used to go as juniors to Bombay House, trembling to be in the presence of this great man, we were always taken in on time. We were treated with unfailing courtesy. And when the conference was over, he got up from his chair, opened the door, led us all to the lift and made us feel so special.

Now this was not contrived. This came naturally to him. Humility was part of his psyche and he made people comfortable. A great man is one who is truly humble. He doesn’t need to put on airs. He doesn’t need to throw his weight around.

When we are born, we come here with a return ticket. Life is one of the only products in which there is always an expiry date. The only difference is that there is no law which requires the expiry date to be printed on the product. Therefore when we are born, the day on which we will go is embedded on our forehead. Unfortunately, we cannot read that date. People around us cannot read that date. It is God who decides when he takes you away.

All I can say is that perhaps as far as Nani was concerned, one life was not good enough. The kind of man he was, the talents he enjoyed, the achievements to his credit were all more than enough for many lives.

Finally, I end by saying that I extend my heartfelt condolences to each and every member of his family. And I extend my heartfelt condolences to each and every member of the Bar because the loss was that of all of us.

May he rest in peace.

MR RA DADA
President, Bombay Bar Association

The Advocate-General of Maharashtra, Mr Iqbal Chagla, my colleague Mr Rohit Kapadia, Mr Gautam Patel, members of the family of Mr Palkhivala, ladies and gentlemen,

As the Learned Advocate-General just mentioned, although we have a Full Court Reference, it was decided that we should have a reference to Mr Palkhivala. This is because we have all suffered a personal bereavement and that is why the Learned Advocate-General was right in extending his condolences to the members of this Bar.

This building, as you know, is more than 100 years old. And should the story of this High Court ever be written, I am sure that it will mention that there was one Advocate who was most outstanding and the likes of whom will probably never be seen again.

When we joined the Bar, we had heard of the great legend of Mr Nani Palkhivala. In very early years at the Bar we saw him in action in the Central Court in the Currimbhoy Ibrahim baronetcy case in which Mr Chagla also figured. We were told he was going to appear for one of the sides. We anxiously waited for him. Just when his turn came, he happened to be appearing in Court. He expounded on the concept of resulting trusts under the Indian Trusts Act. Many of us had been in the matter for over 15 days before. It never struck anyone that this kind of argument was possible. The judges were spellbound. That was the impression which Mr Palkhivala created. Every now and again, whenever the judges interjected, there was a patient and courteous response.

A little later, I also had the privilege of figuring in one of the matters in the Supreme Court where the Constitutional validity of the Expenditure Tax Act was challenged. We had conferences - Mr Ranina is also here - in Delhi with Mr Palkhivala. In the earlier stages, there was a strategy whereby the government asked for an adjournment and Mr Palkhivala really couldn’t understand what the strategy was all about. Probably the idea was to see that he wouldn’t be available in the next hearing. But then the exposition went on brilliantly. It went on for a length of time. And ultimately a decision came on the subject.

There is nothing that he couldn’t do at the Bar. But there was a lot he could do outside. As you know, and as all of us are familiar, the great speeches in the Brabourne Stadium where people went religiously from year to year to hear the great exposition of the law.

Whether it was constitutional law, whether it was civil law, whether it was taxation, whether it was international law, Mr Nani Palkhivala had a certain quest for excellence and he lived up to that ideal on every occasion.

I must mention one incident, which I cannot resist. There was a conference of tax lawyers in Matheran on a particular weekend. And we were all slated to reach there on Sunday to speak. I reached there a day earlier and the conference had already assembled. I said, “What is the session today?” The answer was that “the session today is only to hear the tape-recorded speeches of Mr Palkhivala over the last seven or eight years.” Everyone was listening spellbound. I went into the audience. I also heard it. It was amazing. The amount of affection, the amount of veneration, the amount of respect that people carried for him.

In the last few years when he had a function for him and he addressed us, he mentioned that he believed that there was a certain destiny which controlled the lives of men. It is that destiny that has ultimately decided to take him away. It has left us poorer, but he has set a great example. The example which he set was of great advocacy. But more than that, the love for democracy, the love for what he felt was the basic structure of the constitution which is really indelible contribution to the field of constitutional law.

There is much that can be said, but all that I can say is to repeat what I said earlier: we are personally bereaved. On behalf of the members of this Association, I extend our condolences to the members of his family who have been good enough to spare the time to come here.

I pray that that very divine destiny gives him everlasting peace.

MR IM CHAGLA
Senior Counsel

Mr President, Mr Rafique Dada; Mr Rohit Kapadia, Mr Vice-President, Ghoolam Vahanavati, Advocate-General, Gautam Patel, friends.

We felicitated Mr Nani Palkhivala when he reached 50 years at the Bar. We felicitated him when his portrait was put up in the High Court Library. In the fitness of things, his was the last niche in the High Court Library; I don’t think we can accommodate any more. And I do believe none should be accommodated after Nani.

And we felicitated him once more when he was awarded the Padma Vibhushan. On those occasions, we made speeches that were congratulatory. Today we meet to console ourselves on the passing away of Nani Palkhivala.

But I do believe that whatever words we speak today can be no solace to the irreparable loss that the country has suffered, that the profession has suffered and that the members of his family have suffered.

But I would suggest to you, friends, that we should not be in mourning. I rather believe that we should rejoice. We should rejoice in the knowledge and in the fact that during our lifetime there lived a person like Nani Palkhivala. We should rejoice that many of us were witness to his eloquence; witness to that union of law, logic and literature. We should rejoice that some of us, at least, were privileged enough to know and befriend Nani and know his immeasurable warmth and kindness.

When Indira Gandhi lost her election — 12th of June 1975 — she looked for the best lawyer in the country. Naturally, it had to be Nani. Nani was briefed, he appeared before the Vacation Judge and he obtained a conditional stay. On the 25th of June, Emergency was declared. We met in the High Court Library and spontaneously resolved that we would abstain from court as a mark of protest. We received a call, a few of us, from Nani: would we cross over and see him at Bombay House? When we went to Bombay House, there was this very perturbed, uncomfortable and angry Nani Palkhivala. He took a decision and in an act of rare courage, he called up Gokhale, the Law Minister, and said that he could no longer appear for the Prime Minister. Gokhale said, “I will speak to the Prime Minister and get back to you.” Nani’s answer was, “This is not negotiable. I am only informing you of my decision.”

The next thing was that the Times of India would not publish his press statement. They said that the official censor refused to allow it to appear. In our presence, Nani called up the editor and said, “If this does not appear tomorrow morning, I will move the Court and get an injunction against you.” Ultimately, the statement did appear, albeit not in its entirety.

And again, during the Emergency, when Justice Nathwani wanted to call a meeting at which J C Shah and M C Chagla were to speak, the Police Commissioner said no, this was not permissible. Nathwani filed a Writ Petition. Nani was the lead Counsel. With him appeared a hundred and forty four Counsel. They put their names down on a list. As Nani told the First Court, that within the four corners of that courtroom there was freedom of speech confined to that room. And Nani exploited that freedom to the full and argued courageously and fiercely and the order was ultimately struck down.

Friends, I think all of you and acknowledge that but for Nani’s brilliance in the Keshavanda Bharati case, we would today not be enjoying our freedoms. The unamendability of the Constitution would not have been established.

But I think that few of you would know that Nani almost did not get past the first day. For all his unbridled eloquence, Nani found himself at a loss for words. On that first day, there he was appearing before 13 judges who, one after another, hurled questions at him. Before he could answer one, came the next. At the end of the day, an exhausted Nani Palkhivala sat down and said “I cannot continue. I am not going to argue tomorrow.” Chandu Daphtary - the wily Chandu Daphtary - turned to him and said, “Don’t worry. Tomorrow, you will have a quiet Court.” Nani couldn’t understand this. Nobody could.

Puffing on his pipe, off went Chandu Daphtary to Chief Justice Sikri’s Chamber. He saw Sikri.

Of course, when he entered, just as everyone else was always very happy to see Daphtary, Sikri said, “Ah, Daphtary, and to what do we owe the honour of your presence today?”

Daphtary said, “Well, Chief Justice, there was a man who had come with his daughter and she was so impressed, I thought I must come and tell you.”

“Oh really?” said Sikri, beaming.

Daphtary went on. He said, “Yes, there he was with his young daughter, and she said, Daddy, what a magnificent courtroom! What elegant, magnificent gentlemen sitting up there! How beautifully they speak! But who is that awfully rude man down there who keeps disturbing them all the time?”

And Sikri said, “Point taken, Daphtary, I shall have a word with my brother judges.”

And, of course, the next day, there was total quiet. Nani was allowed to weave his magic, and, ultimately, argue his case.

Today, we are here to salute this great man; I think perhaps the greatest Advocate of this Court; certainly, within living memory, I believe the greatest Advocate. We are here to salute a man of brilliance, a man of great learning, a man of great erudition, a man of literature, but above all, a man of humanity. And, ladies and gentlemen, I think this is what Nani was, a man of genius but who never lost that virtue of humility. And this is what made him a great lawyer, but even more, a greater human being.

Thank you very much.

RESOLUTION

The President, Mr Dada then proposed the following resolution, which was seconded by the Learned Advocate-General and passed unanimously.

“This House mourns the sad demise of Shri Nani Palkhivala and expresses its heartfelt condolences to the members of the bereaved family. May his soul rest in eternal peace.”

The House observed a two-minute silence as a mark of respect to the deceased.