The legal luminary didn’t hesitate to call a spade a spade and point out to the most authoritarian ruler the folly of tinkering with the Constitution
January marked the birth centenary of Nani A Palkhivala, the most respected legal luminary the country has ever had the privilege to call its own. This is a time when India — divided vertically over contentious issues like the Citizenship Amendment Act (CAA), National Register of Citizens (NRC) and National Population Register (NPR) — misses the guidance and scholarly presence of a person like Palkhivala, who was considered the last word on the Constitution of India. He never hesitated in calling a spade a spade and pointing out to the most authoritarian ruler of our times the folly of tinkering with the Constitution.
One can only look back at Palkhivala with awe and adoration for the bravery with which he opposed the move of the then Prime Minister Indira Gandhi to tamper with the Constitution by bringing in the most unwanted Amendment of our times, the 42nd Amendment Act, 1976. With most Members of Parliament (MPs) belonging to the Opposition, in jail, under the dreaded Maintenance of Internal Security Act (MISA), there was none to raise a voice against the then Prime Minister, whose only interest was to save her job. She had appointed a committee of “yes men” under Swaran Singh, the then Minister for External Affairs, to bring in revolutionary changes in the Constitution and ensure the Gandhi clan’s hold over the Government and the Congress party.
The Swaran Singh Committee’s remedy or antidote to counter the “onslaught” by the Opposition was to incorporate the terms “secular” and “socialist” and add “integrity” to the word “unity” in the Preamble of the Constitution. In a scathing article in the July 4, 1976 issue of The Illustrated Weekly of India (now defunct), Palkhivala warned: “Our Constitution has an extraordinarily forceful and meaningful Preamble which reflects the pledge contained in the Objective Resolution of 1946 to guarantee basic human rights; we, the people of India, having solemnly resolved to constitute India into a Sovereign Democratic Republic and to secure to all its citizens: Justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity of the nation; in our Constituent Assembly this twenty-sixth day of November 1949, do hereby adopt, enact and give to ourselves this Constitution.”
The Swaran Singh Committee wanted that in place of the expression, “Sovereign Democratic Republic” we should substitute the words “Sovereign Democratic Secular Socialist Republic”, and that the word “integrity” should be inserted after “unity.”
Palkhivala opined that this proposal was “singularly ill-conceived.” He cited four reasons why such a change should not be made in the Constitution of the country. “What follows or is annexed to the Preamble is the Constitution. The Preamble is a part of the Constitution Statute, but it is not a part of the Constitution. Article 368 deals only with an amendment of ‘this Constitution’ but not of the Constitution Statute. Therefore the Preamble cannot be amended under Article 368. Moreover, the Preamble, from its very nature and content, is incapable of being amended. It refers to the most momentous event in India’s history and sets out, as a matter of historical fact, what the people of India resolved in 1949 to do for their unfolding future. No Parliament can amend or alter the historical past,” said Palkhivala in the article, which was published during the peak days of Emergency.
He also said that the insertion of the word “socialist” would, instead of clarifying the basic structure of the Constitution, merely make it dangerously ambiguous. Palkhivala, a brilliant legal mind, deciphered the meaninglessness of the term Socialist Democracy, which he likened to “boiling ice” because it was precisely this democracy that the dragon of socialism was about to devour. The legal wizard was of the view that the words “secular” and “integrity” could add nothing to the content of the Preamble.
“Anyone, who has a sense of rhythm and style, would know that the beauty of the Preamble, which is distinguished by economy of words, would be marred by the insertion of the three words, all of which are unnecessary and one of which is misleadingly equivocal,” he stated.
The greatest lawyer of our times signed off the article with the words: “We, the people of India, made our choice in 1949. Twenty-seven years later, we are invited to make the other choice.” Well, Palkhivala, might be having a hearty laugh every time we read the Preamble of the Constitution today. While we assert that “in our constituent Assembly this twenty-sixth day of November 1949, do hereby adopt, enact and give to ourselves this Constitution”, the terms “Socialist”, “Secular” and “Integrity” were incorporated only in November 1976.
(The writer is Special Correspondent, The Pioneer)
