Nani Palkhivala Suggested To Make Arbitration Compulsory In Commercial Matters To Reduce Pendency Of Cases: Justice Indu Malhotra [Video]

Giving an overview of the arbitration landscape in India ,Supreme Court Judge  Justice Malhotra stated that Nani Palkhivala had regarded as the greatest drawback of administration of justice in India the delay in the disposal of proceedings and the mind-boggling number of cases pending in courts. One of the suggestions he mooted was that arbitration must be made compulsory in commercial matters"

"My own experience of national and international arbitration gives me great confidence in arbitration as an alternative superior to litigation. If I was appointed as a dictator of a country, then in the short period between my appointment and my assassination, I would make a law for all commercial disputes to compulsorily be referable to arbitration", she quoted Palkhivala.

"Justice H. R. Khanna, in his memoir, writes that the heights of eloquence to which (Nani) Palkhivala had risen has seldom been equaled and never been surpassed in the history of the Supreme Court", added Justice Indu Malhotra.

The Supreme Court judge was speaking at the birth centenary celebrations of the veteran lawyer and jurist in New Delhi.

In what she described as the best oratory of Palkhivala, Justice Malhotra recounted an episode from when the Kesavananda Bharati case had come up for review in the apex court-

"I have derived my knowledge (of the incident) from my father who was present in the court then and an article written in the Times of India by Mr. Fali Nariman...This was after the super session of the three senior most judges when the judgment in the Indira Gandhi election case was delivered on November 7, 1975. An application was moved by the Attorney General and the Advocate General of Tamil Nadu seeking the listing of the writ petition for reconsideration of the Kesavananda Bharati decision. The CJI had indicated that the writ petition would be listed for hearing before a 13-judge bench on November 10, 1975 to decide whether the Basic Structure doctrine restricted the power of the Parliament to amend the Constitution and whether the Bank Nationalization case was correctly decided...Just before the reconsideration, four out of the five judges in the Indira Gandhi case reaffirmed the Basic Structure doctrine on November 7, 1975...The Hearing (in the Kesavananda Bharati review) lasted a little over two days. There were these two lines that Palkhivala had said which my father would recount on many of occasions- 'Gentlemen, you will rue the day if you let down the people of this country by reconsidering and reopening Kesavananda Bharati. Posterity will never forgive you for this'...After one and a half days of presentation, 12 out of the 13 judges were convinced by his arguments. They told the CJI that Since there were no live issues to consider and the hearing of the case would take 6 months, it would be a waste of time. On the third day, the Chief Justice announced that this bench is dissolved..."

Justice Malhotra narrated how "the greatest constitutional jurist", whose "contribution to Constitution law and Income Tax is unparalleled", had at the peak of the emergency fearlessly fought for an independent judiciary which would safeguard the Fundamental Rights of the citizens against the Executive-

"He believed that the constitution is intended not only to provide for the exigencies of the present but to endure over the ages...Palkhivala reached the zenith of his career when he propounded the Basic Structure doctrine in Kesavananda Bharati. He regarded as the Basic Structure the supremacy of the Constitution, the sovereignty of India, the integrity of the country, the democratic way of life, the republican form of government, a State without any religion, a free and independent judiciary, the dual structure of the Union and the states and the balance between the Executive, the Legislature and the Judiciary"

She reminisced her first interaction with Palkhivala when she was assisting Senior Advocate P. H. Parekh before a constitution bench on the Post-Manufacturing Expenses case, and when she had commenced her independent practice (only after four years at the bar) and had sought an appointment with Palkhivala to procure his written opinion on an Income Tax issue-

"Apart from his brilliance in comprehending the issue within minutes, I was overwhelmed by his extreme courtesy towards women. He rose from his chair when I entered and he even came and held the door for me when I was leaving. He was extremely courteous and there was no arrogance to him..."