Palkhivala should be alive at this hour

EducationWorld July 2022 | Editorial Magazine

The sights and sounds of bulldozers razing homes of citizens who had allegedly encroached on government land, which played out on 210 million television screens across the country last month, have severely damaged India’s image as nation of orderly governance and rule of law. Outrage over dispensation of executive justice has provoked six former Supreme and high court judges and an equivalent number of veteran lawyers to petition the Chief Justice and Supreme Court to take suo motu cognisance of the blatant disregard of due process by the BJP government of Uttar Pradesh.

Although the languid reaction of the judiciary to the UP state government directly visiting draconian punishment on alleged rioters and anti-socials without due process is reprehensible, the fault is less of the bench than bar. The country’s top legal practitioners have failed to creatively interpret the law to protect the rights and property of citizens and religious minorities persecuted by prejudiced Central and state governments.

In this connection, lawyers need to revisit the extraordinary legal creativity of the late Nani Palkhivala (1920-2002) who on several occasions persuaded the Supreme Court to injunct runaway governments at the Centre from eroding the fundamental rights and freedoms of citizens and minorities. In the Golak Nath Case (1967), although it was settled law that under Article 368, Parliament with a two-thirds majority, could amend any provision of the Constitution, he successfully argued that it cannot alter or abridge fundamental rights encapsulated in Part III of the Constitution. Moreover in the Kesavananda Bharati Case (1973), he prevailed upon the apex court to rule that altering the basic structure of the Constitution is beyond the authority of the largest parliamentary majority.

In the present instance, the justification of the UP and several other state governments for demolishing homes of citizens is that as encroachers they had no right, title or interest in buildings constructed on government land. Yet it’s common knowledge that to extract bribes corrupt government officials issue fake licences and encourage illegal construction on public property. Judicial notice should be taken of this.

Moreover it’s surprising that latter day leading lights of the bar have not pressed the courts to apply the doctrine of estoppel to disqualify state and local governments from contesting titles of structures built on government land years after occupation. Government has a public duty to contest adverse possession of government property immediately after encroachment. Not at its convenience, years after.
With his brilliant logic, lateral thinking and creative interpretation of law, were he alive at this hour, Palkhivala would have persuaded the Supreme Court to estopp official demolition of citizens’ homes when government neglects to contest adverse possession of public property within reasonable time.

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