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Nani Palkhivala’s Arguments in India’s Landmark Cases

Blog by:
Jayprakash B. Somani
Advocate, Supreme Court of India & IP
Cell: PA 9322188701
www.jayprakashsomani.com
www.supremecourtlawfirm.com

How One Advocate Shaped the Constitutional Destiny of India

Introduction

Nani Ardeshir Palkhivala was not just an advocate arguing cases—he was arguing for the soul of the Indian Constitution. His courtroom submissions before the Supreme Court transformed constitutional interpretation, strengthened civil liberties, and restrained arbitrary State power.

Unlike many lawyers, Palkhivala’s arguments were:

• Deeply principle-based

• Rooted in comparative constitutional law

• Anchored in constitutional morality

• Delivered with unmatched clarity and precision

1. Kesavananda Bharati v. State of Kerala (1973)

AIR 1973 SC 1461
13-Judge Constitution Bench

Core Constitutional Issue

Does Parliament have unlimited power to amend the Constitution under Article 368?

Palkhivala’s Central Arguments

(a) Constitution Is Supreme, Not Parliament
Palkhivala argued:

• Parliament is a creature of the Constitution

• A creature cannot destroy its creator

• Unlimited amending power would convert democracy into parliamentary absolutism

“If Article 368 is unlimited, the Constitution is a plaything in the hands of Parliament.”

(b) Existence of an Implied Limitation
He asserted that:

• The Constitution has inherent limitations

• Certain features are so fundamental that even Parliament cannot abrogate them

These included:

• Supremacy of the Constitution

• Republican and democratic form of government

• Separation of powers

• Judicial review

• Fundamental Rights

(c) Fundamental Rights as Moral Restraints
He argued that Fundamental Rights are not State-given privileges, but recognitions of pre-existing human liberties.

Impact of His Arguments

• Birth of the Basic Structure Doctrine

• Preservation of constitutional democracy

• Foundation of modern Indian constitutional law

2. Golaknath v. State of Punjab (1967)

AIR 1967 SC 1643

Issue

Can Parliament amend Fundamental Rights?

Palkhivala’s Arguments

(a) Amendment Is Not Ordinary Law-Making

• Article 13 prohibits laws violating Fundamental Rights

• Constitutional amendments fall within the definition of “law” under Article 13

(b) Natural Law Theory
He relied heavily on natural rights philosophy and U.S. constitutional jurisprudence:

“Fundamental Rights are not gifts from the State, but limitations upon the State.”

Outcome

• Parliament held incompetent to amend Fundamental Rights (later refined in Kesavananda)

• Laid the groundwork for constitutional limitation doctrines

3. Minerva Mills Ltd. v. Union of India (1980)

AIR 1980 SC 1789

Issue

Validity of the 42nd Constitutional Amendment granting Parliament unlimited amending power.

Palkhivala’s Arguments

(a) Limited Amending Power Is a Basic Feature
He argued that:

• Parliament cannot enlarge its own powers

• Unlimited power clauses are inherently self-destructive

(b) Harmony Between Fundamental Rights and DPSPs

• Neither can annihilate the other

• Constitutional balance is mandatory

Judgment

• Clauses granting unlimited amending power struck down

• Judicial review reaffirmed as part of the basic structure

4. Indira Nehru Gandhi v. Raj Narain (1975)

AIR 1975 SC 2299

Issue

Can the Prime Minister’s election be placed beyond judicial scrutiny through constitutional amendment?

Palkhivala’s Arguments

(a) Free and Fair Elections as Basic Structure
Democracy cannot survive without judicial oversight of elections.

(b) Rule of Law Above Individuals
No individual, however powerful, can be above the law.

“Equality before law is meaningless if the ruler is above it.”

Outcome

• Election-protecting amendment struck down

• Rule of law and judicial review reaffirmed

5. R.C. Cooper v. Union of India (1970)

AIR 1970 SC 564
(Bank Nationalisation Case)

Palkhivala’s Arguments

(a) Substance Over Form
The State cannot evade Fundamental Rights by labeling actions as mere policy decisions.

(b) Interrelationship of Fundamental Rights

• Articles 14, 19, and 31 are interconnected

• Any law affecting property must meet the test of reasonableness

Impact

• Expanded the scope of Fundamental Rights

• Prevented arbitrary economic nationalisation

6. Sajjan Singh v. State of Rajasthan (1965)

AIR 1965 SC 845

Contribution

Though the majority upheld Parliament’s power, Palkhivala’s submissions:

• Raised doubts about unrestricted amendment powers

• Influenced future dissents and constitutional evolution

Justice Mudholkar’s dissent, heavily influenced by Palkhivala, questioned whether the Constitution possessed a “basic structure,” foreshadowing Kesavananda Bharati.

7. Taxation and Fiscal Constitution Cases

Across several taxation matters, Palkhivala shaped:

• Limits on retrospective taxation

• Reasonableness in fiscal legislation

• Protection against arbitrary executive discretion

He consistently maintained:

“The power to tax is not the power to destroy.”

Hallmarks of Palkhivala’s Courtroom Advocacy

• Exceptional logical clarity

• Extensive comparative constitutional analysis (U.S., U.K., Canada)

• Moral authority without theatrical rhetoric

• Fearless yet respectful challenge to State excesses

Judges often remarked that his submissions educated the Bench itself.

Enduring Constitutional Principles Established

Conclusion

Nani Palkhivala’s arguments did not merely win cases—they safeguarded Indian democracy.

At moments when constitutional survival was at stake, his voice became the voice of the Constitution itself.

Without Palkhivala:

• The Constitution could have been amended at will

• Judicial review might have been extinguished

• Fundamental Rights reduced to political concessions

His advocacy remains the enduring gold standard of constitutional lawyering in India.