The All India Federation of Tax Practitioners (AIFTP)

Inspired by the ideology to have a common platform for all those who practice taxation laws, irrespective of their individual affiliations and to enable them to share the benefits of their learning and sharing of knowledge, eminent professionals from the fields of Direct and Indirect Taxes conceived the idea of establishing an All India body for the tax practitioners. It was at the opening ceremony of the National Conference held on 11-11-1976 organised by The Chamber of Income Tax Consultants Mumbai under Presidentship of Shri B. C. Joshi, that the doyens of the Professionals christened the Association in the presence of former Chief Justice of India, Hon’ble Justice J. C. Shah, distinguished Jurist Padma Vibhushan Dr. N. A. Palkhivala Senior Advocate and Shri Ram Rao Adik, Senior Advocate, Advocate General of Maharashtra. Shri N. C. Mehta, Chartered Accountant, Mumbai, was elected as Founder President of the All India Federation of Tax Practioners ( AIFTP) of and Shri P. C. Joshi was elected as Secretary General. The AIFTP has completed 45 glorious years of its existence.

The main object of AIFTP is to spread education in the matters relating to tax laws, other laws and Accountancy.

The AIFTP has a well-equipped registered Head Office at 215, Rewa Chambers, 31, New Marine Lines, Mumbai- 400 020. The total strength of National Executive Committee Members is 75 headed by a National President, with a Deputy President, five Vice-Presidents and five Joint Secretaries. Present the National President Mrs Nikita Badheka, Advocate from Mumbai and Mr M. Srinivasa Rao, Tax Practitioner from Eluru (AP) is the Deputy President. Our eminent Past National Presidents are Late Shri N. C. Mehta, Chartered Accountant, Mumbai (1978-83), Late Shri B. C. Joshi, Advocate, Mumbai (1984-90), Late Shri L. M. Mahurkar, Tax Practitioner, Nagpur (1991-93), Shri P. C. Joshi, Advocate, Mumbai (1994-96), Late Shri Sukumar Bhattacharya, Advocate, Kolkata (1997-99), Late Dr. N. M. Ranka, Senior Advocate, Jaipur (2000-02), Dr. K. Shivaram, Senior Advocate, Mumbai (2003-05), Late Shri V. Ramachandran, Senior Advocate, Chennai (2006-07), Shri Bharat Ji Agrawal, Sr. Advocate, Allahabad (2008-09), Shri M. L. Patodi, Advocate, Kota (2010-11), Late Shri S. K. Poddar, Advocate, Ranchi (2012-13) Shri J. D. Nankani, Advocate, Mumbai (2014-15), Dr. M. V. K. Moorthy, Advocate, Hyderabad (2016), Mrs Prem Lata Bansal, Senior Advocate, Delhi (2017) Shri Ganesh Purohit, Senior Advocate, Jabalpur (2018), Dr. Ashok Saraf, Senior Advocate, Guwahati (2019) Mrs. Nikita Badheka, Advocate, Mumbai (2020) Shri Malladi Srinivas Rao Tax Practioner from Eluru, Andhra Pradesh has been elected as National President for the year 2021.

The membership of the AIFTP includes Senior Advocates, Advocates, Solicitors, Chartered Accountants and Tax Practitioners, Practicing Direct or Indirect Taxes, from all States in the Country. Its members enjoy a strong bond of fellowship leading to fraternal brotherhood amongst professionals. The AIFTP is the symbol and spirit of National Integration. As of today, the AIFTP is the only voluntary professional organisation of our country which has 138 Professional Associations as its affiliated members and more than 8701 individuals as life members from 27 States and 4 Union Territories.

For conducting regular educational activities, the AIFTP has various Sub-Committees such as Journal Committee, Law & Representation Committee (Direct & Indirect Taxes), ITAT Bar Associations’ Co-ordination Committee, Membership Development & Public Relations and Times Committee.

The AIFTP publishes a monthly Journal covering the latest reported & unreported decisions of the Supreme Court, High Courts and Income Tax Appellate Tribunals including the articles, opinions and latest developments on direct and indirect taxes by experts in the field. The unique feature is that every quarter, it publishes the gist of Important Case Laws published in 33 Tax Magazines, www.itatonline.org from across the country. Yearly digest of case laws from 2012 onwards are also available in the website www. aiftponline.org and www.itatonline.org which can be down loaded by the members and tax professionals.

AIFTP publishes a monthly newsletter called AIFTP TIMES which is sent to all the members free of charge. Newsletter contains important notifications, circulars and other topical information apart from various activities of the AIFTP.

AIFTP website i.e. www.aiftponline.org, is an informative source for the members. The website is regularly updated by a team of dedicated professionals. The Journal and Times are available on the website.

AIFTP has been making representations for better tax law and tax administration. AIFTP and Associate members have filed more than 35 Public interest petitions before various Courts for better administration of tax laws and to up hold the independency of judicial forums. AIFTP regularly sends Pre- and Post-Budget Memorandums. Many of the suggestions and the recommendations are accepted. It regularly publishes books in simple language and question-answer format at a low cost. It has published more than 45 publications till date. Its first e -publication on the subject of Direct Tax Vivad Se Viswas Schme 2020 and the said publication was released on 22-4-2020. AIFTP in association with Income Tax Appellate Tribunal Bar Association, Mumbai has published a publication named “Digest of Case Laws — Direct Taxes (including allied laws) (2003-2011)”, to Commemorate the 150th Year anniversary of the Bombay High Court. In the year 2015, “Interpretation of Taxing Statutes – Frequently asked questions”, which was dedicated to Honourable Mr. Justice S. H. Kapadia, former Chief Justice of India, (2017) Income tax Appellate Tribunal – A Fine Balance, Law Practice, procedure and conventions – Frequently asked questions – Dedicated to Padma Vibhushan Late Dr. N. A. Palkhivala, Senior Advocate AIFTP has published a publication titled (2018) “311 – Frequently asked questions on Survey – Direct taxes – Dedicated to Hon’ble Justice Dr. B. P. Saraf, former Chief Justice of Jammu and Kashmir High Court. (2020) 151 Land mark judgements of the Hon’ble Supreme Court of India – 151 years of Mahatma Gandhi -” on 2-10 – 2020 the auspicious occasion of 151st birth anniversary of Father of the Nation Mahatma Gandhi which is dedicated to Hon’ble Justice Dr. B. P. Saraf, former Chief Justice of Jammu and Kashmir High Court. At National Convention held on 5 th December 2020, the publication titled “Reassessment law, Procedure & Practice (Practical guide) was relased the said publication is dedicated to Hon’ble Justice Dr. B. P. Saraf, former Chief Justice of Jammu and Kashmir High Court.

AIFTP jointly with the Association Members, organise National Seminars, Conferences and Conventions in various parts of the Country to update its members on Direct and Indirect Taxation. A unique feature of the AIFTP is that its faculties, chairmen, trustees, office bearers and members of the National Executive and Zonal Committees pay a registration fee and bear their own travel and stay expenses. From April 2020 to September 2020 during the period of Covid-19 Pandemic the AIFTP has conducted more than 100 Webinars on various subjects and all webinars were without any charges.www.aiftponline.org AIFTP as an association with the help of their members have contributed an amount of ₹ 11 lakhs to the Prime Minister Cares Fund. In the year, 1999 the AIFTP had published a publication titled “NRI – A Legal companion” which was dedicated to the War Heroes of Kargil and the entire surplus of the said publication was handed over to the Defence fund.

For the development of the Tax Bar, the “Nani Palkhivala Memorial National Tax Moot Court Competition” and “Research in Tax Laws” was started under the banner of “Palkhivala Foundation” at Mumbai, wherein every year students from more than 25 leading law colleges of India participate in the competition and more than 100 Law Colleges are participating in the Research Competition.

AIFTP has adopted the Code of Ethics to its members which is part of the constitution of the AIFTP

As per an appeal made by the AIFTP, the Government of India has released Commemorative Postage Stamp in Memory of Padma Vibhushan Late Dr. N. A. Palkhivala, Senior Advocate on 16th January, 2004. The then Hon’ble Prime Minister of India, Shri Atal Bihari Vajpayee released the Commemorative Postage Stamp at Mumbai.

Since 2004 AIFTP conducts regular International Study tours, in the first study tour a seminar was held at Law Society of England and Wales on 24-04-2004, wherein a publication titled “India-A Global Business Destination” was released at England. In the first International Tax Conference which was held on 19th to 21st November 2009 at Mumbai wherein heads of Professional Organisations from 16 Countries attended the International Tax Conference.

AIFTP is considered a National Integration of Tax Professionals of India. AIFTP have many eminent professionals as members, some have been elevated as Judges of the Supreme Court, High Courts, and Tribunals. Most of the leading Senior Advocates, Advocates who practice on Direct or Indirect Taxes, many past Presidents of Institute of Chartered Accountants of India, Chairman and member of Bar Councils of various States, leading Lawyers, Chartered Accountants and Tax Practitioners of our country are esteemed members. AIFTP is recognised globally as one of the vibrant Associations of Tax Practitioners of India.

On 11-11-2016, on the occasion of completion of 40 years of the AIFTP a publication and a short film titled “40 Years of Milestones and Beyond” was released by the AIFTP which contains the history of the AIFTP. www.aiftponline.org

With active support of the members of the AIFTP the flag of the AIFTP will fly high for the times to come.

Shri Nani Palkhivala delivering Keynote address at 1st All India Conference on Taxation on 11th November 1976

When I die …

Give my sight to the man who has never seen a sunrise.

Give my heart to one who has known the agony of the heart.

Give my blood to a youth pulled from the wreckage of a car so that he might live to see his grandchildren play.

Let my kidneys drain the poison from another’s body.

Let my bones be used to make a crippled child walk.

Burn what is left of me and scatter the ashes to the wind to let the flowers grow.

If you must bury something, let it be my faults and my prejudices against my fellowmen.

Give my sins to the Devil.

Give my soul to the God.

If you wish to remember me, do it with a kind deed or word to someone who needs you.

If you do all I’ve asked, I’ll live for ever.

— Nani A. Palkhivala

Source: Interview with Shri Palkhivala by Bombay Chartered Accountants’ Society (BCAJ-September 1982 P. Nos 791 to 815

Q. Would you kindly be specific as to what particular qualities you look for an individual and what particular qualities appealed to you in the individuals you just talked about?

A. I respect courage integrity and humility. These three qualities, I think are essential to make a likeable personality.

Firstly, a man must have the courage of his convictions. He must not be coward. He must honestly believe certain things and he must say publicly what is believes privately.

Secondly, he must have integrity – not only financial integrity, which is much more common than intellectual integrity, that is honesty of purpose, the intellectual honesty which makes him say what he believes to be right. So, if a Chartered Accountant or a lawyer has intellectual integrity he will never give an opinion merely to suit the client. I think every professional man must have that ideal before him, when advising clients.

Thirdly, humility is just important as courage and intellectual integrity. The higher a man goes in life more the humble he should be. I remember vividly a sentence I read 50 years ago at school; “The higher a man is in grace, the lower he will be in his own esteem “the grace referred to here being the grace of God. I some how by temperament, find it difficult to admire people who are egoists. The cleverest of us, the greatest men who ever lived are just like pygmies. What are the greatest achievements of a man against the backdrop of eternity? India’s great heritage teaches true humility. We are all insignificant planets in an infinite Universe.

Source: 1st Nani Palkhivala National Tax Moot Court Competition (16th to 18th December 2004)

Justice and the rule of law are perhaps two of the noblest concepts evolved by the wit of man. To the Romans, Justice was a goddess whose symbols were – a throne that tempests could not shake, a pulse that passion could not stir, eyes that were blind to any feeling of favour or illwill, and the sword that fell on all offenders with equal certainty and with impartial strength. It was said by a great thinker that God is more palpably present in a Court of justice than in a monastery. Ancient Indian culture pays a similar tribute to dispensers of justice. But in our own times there has been a precipitate diminution of this universal admiration and a sharp erosion of the values which ought to actuate the administration of justice.

Doubtless, the law is imperfect, and it would be imperfect even if it were made by a committee of archangels. This is understandable. But according to an eminent writer, the Court is no longer looked upon as a cathedral but as a casino: if you are dissatisfied with the Trial Court’s judgment, you double the stakes and go to the Division Bench; if you are dissatisfied with the Division Bench judgment, you treble the stakes and go to the Supreme Court.

If some people in our country believe that the difficulties we face in our administration of justice are due to British influence, I would emphatically dissent from such a view. I do not think that the British should be blamed for the ailments afflicting our legal system today. If we did not have the rules of British jurisprudence, it would be impossible to administer justice in this country.

There are three grave shortcomings of the present system of administering justice.

Firstly, the commercialization of the legal profession. I do not think the legal profession was ever so commercialized as it is today. When I started my practice in 1946 on the Original Side of the Bombay High Court, if a counsel made a factual statement to the judge, it was implicitly believed to be true, You seldom heard of an affidavit, filed on behalf of the government or any public authority, which did not contain the whole truth. But today a lot has changed. Counsels often make statements which are factually incorrect, and affidavits are after filed, even on behalf of public authorities, which do not state the truth. Unfortunately, we accept perjury as a fact of Indian life. The worst danger is not that even persons in high public office perjure themselves. The worst danger lies in public acceptance of such degradation of national character. As a man who loves India not wisely but too well, I ask the question – Why can we not have standards as high as those of mature democracies in the world? After all, our ancient culture is the noblest ever known.

Secondly, administration of justice suffers from the intractable complexity of modern society. Life has become far more complex, and corruption and all round lowering of standards are more pronounced, than ever before. One is reminded of the remark of Dr. Adenauer, a former Chancellor of West Germany. He said, “In creating man, God hit upon a very poor compromise. If he had made man more intelligent, he would have known how to behave; if He had made man less intelligent, he would have been easier to govern.” This remark neatly sums up the dilemma of democracy.

Thirdly, while all the time we emphasize our rights, we do not lay a corresponding stress on our responsibilities. It is true that eternal vigilance is the price of liberty. But it is true, in even a deeper sense, that eternal responsibility is also part of the price of liberty. Excessive authority, without liberty, is intolerable; but excessive liberty, without authority and without responsibility, soon becomes equally intolerable. De Tocqueville made the profound observation that liberty cannot stand alone but must be paired with a companion virtue : liberty and morality; liberty and law; liberty and justice; liberty and the common good; liberty and civic responsibility.

If I were asked to mention the greatest drawback of the administration of justice in India today. I would say that it is Delay. There are inordinate delays in the disposal of cases. We, Indians, have some fine qualities, but a sense of the value of time is not one of them. Perhaps there are historical reasons for our relaxed attitude to time. Ancient India had evolved the concepts of eternity and infinity. So what does it matter if thirty years are wasted in a litigation against the backdrop of eternity. Since we live in eternity, the waste of decades is of no significance. Further, we believe in reincarnation. What does it matter if you waste this life? You have many more lives in which to make good.

The fault is mainly of the legal profession. Adjournments are asked for on the most flimsy grounds. If the judge does not readily grant adjournments, he becomes unpopular. I think it is the duty of the legal profession to make sure that it co-operates with the judiciary in ensuring that justice is administered speedily and expeditiously. This is the one duty of which the legal profession is totally oblivious.

What are the ways in which the problem can be even partially tackled?

Firstly, we must educate our lawyers better. We produce ethical illiterates in our law colleges, who have no notion of what public good is. In India the number of advocates today is approximately six lakhs. We have the second highest number of lawyers in the world, the first being the United States of America which has over eight lakh legal practitioners. These large numbers result in a lot of lawyer-stimulated litigation in the two countries.

Secondly, we must improve the quality of public administration which is today at an all-time low. In the last fifty years India was perhaps never governed so badly as it is governed today. We have too much government and too little administration; too many civil servants and too little civil service; too many controls and too little welfare; too many laws and too little justice.

Thirdly, the citizenry must be better educated to evolve a higher standard of public character. Ancient Indian culture must be taught in schools and colleges. The synergic effect of the different cultures, the amalgam of which is called Indian culture, is bound to prove of great ethical value. Will Durant said that just as continuity of memory is necessary for the sanity of an individual, continuity of the nation’s traditions and culture is necessary for the sanity of the nation.

[Source: Souvenir, Bar Council of Maharashtra and Goa, Mumbai, State Lawyers Conference at Solapur on 8th and 29th March, 1997]

THE SECOND OF October has again come by, and our hearts and minds go back to the pilgrim of eternity. Smt Kamala, the director of this Gandhi Memorial Centre, gave us a beautiful thought when she said that a part of all the great spirits of the past might have found a place within the soul of Mahatma Gandhi.

Gandhiji’s impact on those who came in contact with him was almost magical. Rabindranath Tagore said:

‘At Gandhiji’s call India blossomed forth to new greatness, just as once before in earlier times when Buddha proclaimed the truth of fellow-feeling and compassion among all living creatures. ‘

Even so hard-headed a man as George Bernard Shaw, to whom praise of others did not come very naturally, when asked for his impression upon meeting Mahatma Gandhi said: “You might as well ask for someone’s impression of the’ Himalayas!’ Romain Rolland, the great French writer and Nobel prize-winner, said that Mahatma Gandhi ‘had introduced into human politics the strongest religious impetus of the last two hundred years’. If instead of two hundred years, he had said twelve hundred years, he would have been still right.

The Mahatma met Charlie Chaplin, confessed to him frankly that he had not seen his pictures, and expounded to him his theory about the disastrous effects of the machine on human life. Their conversation led Charlie Chaplin to produce Modern Times.

In our own times, Anwar Sadat of Egypt has publicly spoken about the tremendous influence Mahatma Gandhi’s writings had on him.

Gandhiji gave a decisive new direction to history. What was it about this man which held the human race in thrall? Who was this individual? And how did he come to wield such influence over the rest of mankind? He himself said that he was a very strange individual. He confessed that he was not intellectually brilliant, but he added that while there are limitations to the development of the mind, there are no limitations to the development of the heart.

If one were to denote in a word what the Mahatma had, it is the Sanskrit word, buddhi—the capacity inter alia to perceive the Truth. This is a capacity which few individuals have, and you can develop it only by deep self-study, by profound devotion. He was able, as a result of his buddhi, to propound solutions which went far beyond the insights of any academic studies of politics or economics or science. Let me tell you what he said about himself:

‘What I want to achieve – what I have been striving and pining to achieve these thirty years – is self-realization, to see God face to face, to attain Moksha*. I live and move and have my being in pursuit of this goal. All that I do, by way of speaking and writing, and all my ventures in the political field, are directed to this same end. I am, but a weak aspirant, ever failing, ever trying. My failures make me more vigilant than before and intensify my faith. I can see with the eye of faith that the observance of the twin doctrine of Truth and Non-violence has possibilities of which we have but very inadequate conception.’

The pregnant phrase ‘the eye of faith’ reminds you of the lines of George Santayana:

‘Columbus found a world, and had no chart,

Save one that faith deciphered in the skies;

To trust the soul’s invincible surmise

Was all his science and his only art.’

It was the only science and the only art of Mahatma Gandhi – to trust the soul’s invincible surmise.

Before I go further into some of the ideas which the Mahatma propagated, I would like to mention one interesting point. There seems to be a mystic – karmic – bond between the United States and India, and you see this link in the case of Mahatma Gandhi. When he was in South Africa (he went there in 1893), the two foreigners who befriended him were both Americans. They gave him succour and shelter. After he came back to India, the first foreigner to spot his incredible spiritual strength was an American. On 10th April 1922, Reverend John Haynes Holmes delivered a speech in an American Church on “Who is the Greatest Man in the World?’ Reverend Holmes declared that he had no doubt that the greatest man alive was Mahatma Gandhi. He compared the Mahatma to Christ. In 1922 no other foreigner had the conception of the Mahatma as the prophet of the twentieth century.

Then came the great years of Mahatma Gandhi in India. There he started his civil disobedience movement, which he implemented with phenomenal success. The one person who influenced him the most in his thinking on civil disobedience was again an American Henry David Thoreau. He had read Thoreau in the year 1907 when he was in South Africa. He had reproduced extracts from Thoreau’s writings in – Young India which he was editing at the time in South Africa.

The last man to be the disciple of the Mahatma was an American – Vincent Sheean. He met the Mahatma in Delhi on 27 January 1948, three days before the Mahatma, was assassinated, and offered himself as a disciple. The Mahatma talked to him at some length on that day on a variety of subjects and quoted to him the lines from the Upanishads: ‘The whole world is the garment of God; renounce it then and receive it back as the gift of God.’ Sheean was most impressed and met him again on the 28th. They were to meet again in the evening of the 30th, but that was not to be.

The last interview which the Mahatma gave was in the early afternoon on 30 January, and it was to an American. She was Margaret Bourke-White who came to interview him for Life magazine. She asked him the question: would he persist in his theory of non-violence in the event of a nuclear attack on a city? The Mahatma’s reply was that if the defenceless citizens died in a spirit of non-violence, their sacrifices would not be in vain; they might well pray for the soul of the pilot who thoughtlessly sprayed death on the city. This was his last message of compassion to mankind.

In our times his influence on America has been of the most significant character. It was his influence which led Martin Luther King to start a civil disobedience campaign on nonviolent lines. Vice-President Mondale has publicly stated how deeply influenced he was as a young man by Mahatma Gandhi’s teachings.

President Carter is another great admirer of the Mahatma. When Hubert Humphrey died, there was one quotation in President Carter’s tribute to the eminent Senator and that was what the President had read at the Gandhi Samadhi in New Delhi. The words quoted enumerate what Gandhiji regarded as the Seven Deadly Sins:

‘Commerce without ethics; Pleasure without conscience; Politics without principle; Knowledge without character; Science without humanity; Wealth without work; Worship without sacrifice.’

Let me now say a few words about the Mahatma’s ideas which have changed the course of human history. His main emphasis, as we all know, was on truth and non-violence. A thinker has said that truth is a scarce commodity, but its supply has always outstripped the demand. While truth does not seem to be triumphing all round us – somehow, somewhere, in some way, something is working which is bringing the human race closer to truth. .

This is what the Mahatma has to say about truth and non¬violence:

‘I may be a despicable person; but when Truth speaks through me, I am invincible.’

Truth alone will endure; all the rest will be swept away before the tide of Time.’

‘Nonviolence is the law of our species, as violence is the law of the brute.’

‘Non-violence is the greatest force at the disposal of mankind. It is mightier than the mightiest weapon of destruction devised by the ingenuity of man.

‘I do not believe in short cuts which involve violence. However much I may sympathize with and admire worthy motives, I am an uncompromising opponent of violent methods even to serve the noblest of causes. There is, therefore, really no meeting-ground between the school of violence and myself.’

It was not a personal God that the Mahatma believed in. He had the very, very deep and profound Hindu concept of Brahma-the all-prevading Reality, which is God in its various manifestations. It is that God that he believed in. To quote his own words:

‘To me God is Truth and Love; God is Ethics and Morality; God is fearlessness; God is the source of Light and Life, and yet He is above and beyond all these. He is even the atheism of the atheist; he transcends speech and reason.’

Ralph Waldo Emerson, who was well-versed in Indian culture, has written a poem called ‘Brahma’, where this very idea is memorably expressed:

‘They reckon ill who leave me out;

When me they fly, I am the wings;

I am the doubter and the doubt,

And I the hymn the Brahmin sings.’

God is the doubter and the doubt, and God is the atheist and his atheism. In other words, there is just no escape from Him. The same thought was expressed by Francis Thompson in The Hound of Heaven. Ultimately the sceptic realizes that God has been by his side all the time.

Another sentence from Gandhiji: ‘Scriptures cannot transcend reason and truth; they are intended to purify reason and illuminate the truth.’ He tried to synthesize the essentials of all religions: ‘Indeed religion should pervade every one of our actions. Here religion does not mean sectarianism. It means a belief in ordered moral government of the universe. It is not less real because it is unseen. This religion transcends Hinduism, Islam, Christianity, etc. It does not supersede them. It harmonizes them and gives them reality.’

He identified himself completely with the common man. He spoke and he worked not for the ruler

‘but the ranker, the tramp of the road,

The slave with the sack on his shoulders

pricked on with the goad,

The man with too weighty a burden,

too weary a load.’

As regards the need of identifying oneself with the masses, he observed —

‘We must first come in living touch with them by working for them and in their midst. We must share their sorrows, understand their difficulties and anticipate their wants. With the pariahs we must be pariahs and see how we feel to clean the closets of the upper classes and have the remains of their table thrown at us. We must see how we like being in the boxes, miscalled houses, of the labourers of Bombay. We must identify ourselves with the villagers who toil under the hot sun beating on their bent backs and see how we would like to drink water from the pool in which the villagers bathe, wash their clothes and pots, and in which their cattle drink and roll. Then and not till then shall we truly represent the masses and they will, as surely as I am writing this, respond to every call.’

The Indian masses responded to the Mahatma’s Gall in a spirit of total surrender.

The Mahatma dealt with problems which are timeless and universal because they spring from enduring weaknesses of human nature and human society. Since the solutions he found for them were based on eternal verities, his influence and, his relevance are also timeless and universal.

On this second day of October, we can have no better wish for India than that the great spirit of the Mahatma may always abide with our people.

(Source – Palkhivala – Selected writings, Page 338)

There are Many aspects of the law which are instinct with romance but none of its aspects is mere saturated and dripping with fascinating interest than its historical evolution. The sources of English law said Chief Justice Hale, are as undiscoverable as the sources of the Nile. But it is not necessary to go as far back as the sources in order to discover the romance of law’s historical evolution

Even as late its the last century there were in existence the Court of Chancery, the Doctors Commons and Debtors’ Gaol. All the three institution have been gibbeted to eternity by Dickens the Court of Chancery in “Bleak House”, the Doctors Commons in “David Copperfield”, the Debtors’ Gaol in “Little Dorrit”. It is hardly credible that less than a hundred years ago ten per cant of all the debtors brought before the court were condemned to languish for the rest of their lives in gaol.

All that time the law of evidence was so unreasonable as to barb with truth the sneer that the law is an ass. No interested person could be called as a witness. As a wit once put it, “If a farmer in his gig ran over a foot-passenger in the road the two persons whom the law singled out to prohibit from becoming witnesses were the farmer and the foot-passengers.” Now the law has been wisely changed and the people who know most about the facts of a case are called to tell the court what they know.

Again, a century ago there were no limited companies. The company with limited liability is one of the greatest milestones by the wayside of legal progress. But it cannot he denied that the institution of the limited company has afforded very generous scope to the ingenuity of balance sheet manipulators, in parliamentary languages and swindlers, in plain English. Wordsworth has assured us that:

One impulse from the vernal wood

May teach you more of man,

Of moral evil and of good

Than all the sages can..

But it has been sorrowfully confessed that as a student of moral evil you can learn more from section 285 of the Indian Companies Act, which deals with defaults and delinquencies of directors, than from all the woods and forests in the world.

Even an apparently plain crime like bigamy has had an interesting historical evolution. In a statute, de Bigamis of Edward the First, we read that the felony of bigamy then marrying two virgins successively one after another, or marrying a widow; but this is of course no longer law. The offence of bigamy is now limited to going through a second marriage by one who has a former spouse still living. The curious definition expressed in the Plantagenet Statute is derived from the Canon law.

As late ire 1818 a man was challenged in the court to ordeal by battle, and the court was compelled to hold that such a right still existed in a challenger. In the ancient days the plaintiff had the option of proving his case in the court or proving the justice of his cause by defeating the defendant in battle. By the end of the Middle Ages this had become a dead letter, but by a strange over sight the law had not been repealed. Therefore Lord Ellenborough, who decided the case of Ashford v, Thoronton in 1818, was compelled to acknowledge the plaintiff right to challenge the defendant in battle. In the other words of the Lord Chancellor, ‘The original law of the land is in favour of wager by battle, and it is our duty to pronounce the law as it is and not as we may wish it to be. Whatever prejudices, therefore, may justly exist against this mode of trial, still, as it is the law of the land, the court must pronounce judgment for it.”

The offence o contempt of court has also a story of absorbing interest behind it. In old days persons who were guilty of contempt in the presence of court had their right hands cut off. An Act of Parliament of Henry the Eighths provides for the execution of this barbarous sentence but also (it must be admitted) for the kindly after-treatment of the offender minus the right hand The Act in its infinite kindness provides that the victim shall have a surgeon at. hand to sear the stump of the right arm, a sergeant of the poultry with a cock ready for the surgeon to wrap about the stump, a sergeant of the pantry with bread to eat, and a sergeant of the cellar with a cup of red wine to drink. The law may be an ass, but it has now become a gentleman and no longer provides for barbarous sentences.

The most famous case of contempt of court occurred in 1772 when one, Johns was committed to the Fleet for contempt. It appeared that he had compelled a poor wretch who sought to serve him with a witness summons to devour both the parchment and the wax seal of the court, and had then, after kicking him so savagely as to make him insensible, ordered his body to be cast into the river. Evidently, volcanic range was the favourite indoor sport of the historic Johns. Of course it is no contempt merely to tear up the writ of summons in the presence of the officer of the court, because, once the service is lawfully effected, the court is indifferent to the treatment of its stationery. The case of Johns is only one of the innumerable cases in the Law Reports which are so curiously instinct with the eternal Human Comedy.

Nani Ardeshir Palkhivala fought for his country and his countrymen not only in Indian courts, but also in the international fora. His international endeavours which required painstaking research and scrupulous examining was often done free of cost. He was both, widely appreciated and credited for the work he did as an Indian representative. A brief account of this journey is elucidated below.

U. N. Special Tribunal (The Indo-Pakistan Western Boundary Case)

Palais des Nations, Geneva

Post war hostilities in 1965, Nani was asked by the Government of India to plead its case in the Indo – Pakistan Western Boundary in the Rann of Kutch. Pakistan had claimed a substantial part of the Rann and India challenged the same. The case concerned India’s integrity and Nani quickly decided that he would fight tooth and nail to defend it.

The question before the tribunal was one of finding, on the evidence placed before it, where exactly the boundary lay between India & Pakistan, in the region between Kutch and Sind. The tribunal was called upon to determine not where the boundary should lie but where in fact, on historical evidence, it lay in 1947 when the two dominions were created. India’s case, supported by maps and other historical evidence, was that the boundary had gradually got crystallized before 1870 and the position of the boundary had become clear and had been correctly delineated on the MacDonald maps published around 1870. Since the boundary was not wholly demarcated on the ground, the matter had to be decided on the historical evidence of maps and other authentic documents.

After establishing the historical background of the region, Nani went on to tear Pakistan’s argument to pieces. He told the tribunal that Pakistan’s case rested upon three theories:

(a) The General Theory of Confusion: All map makers and administrators were confused as to where the boundary laid.

(b) The Special Theory of Confusion: Certain people were especially confused on particular occasions where they treated the whole of Rann as belonging to Kutch.

(c) The Theory of Century of Error: the theory virtually suggests that, for hundred years, everybody made an error as to what precisely were the boundaries of the territory conquered by the British.

He placed special reliance on the MacDonald survey, he argued that before MacDonald one had legends masquerading as maps, but after MacDonald you had legends on maps. Nani’s performance was virtuoso, if almost the full text of Nani’s presentation had been reproduced here, it would show the minute problems he had studied (at one point referring to page numbers 12993 – 12994) and the way he presented his case. It redounded to Nani’s credit. The final Award given by the tribunal on 19th February 1968 entitled India to more than 90 per cent of the Rann of Kutch.

International Court of Justice

The Aftermath of the Pakistani Skyjacking

On 30th January, 1971, Pakistani terrorists hijacked an Indian Airlines Fokker Friendship aircraft flying from Srinagar to Jammu and forced it to land in Lahore. There were 28 passengers and four crew members onboard. One of the ‘Skyjackers’ had a grenade in his hand and threatened to use it if the plane was not diverted to Lahore while another pointed his revolver at the pilot. Having got the plane diverted to Lahore, the hijackers ordered the passengers to disembark, following which the plane was blown up right under the very nose of the Pakistani authorities. India then decided to suspend with immediate effect, the overflight of all Pakistani aircrafts, over the territory of India, until the matter was satisfactorily resolved by both governments.

Pakistan characterised the Indian action of suspending overflights as a breach of ‘International and bilateral commitments’ and complained to that effect to the International Civil Aviation Organization (ICAO). The legal commitments of the two countries in regard to overflights were embodied in the Convention of International Civil Aviation signed in Chicago in 1944, its annexe, the International Air Service Transit Agreement of 1944, the Indo-Pakistan agreement relating to air services reached in New Delhi on 23rd June, 1948 and the agreement arrived at by correspondence after the Tashkent Settlement in 1966. Charging India with a breach of these three international treaties and bilateral agreements, Pakistan proceeded to formally ask the council of the ICAO on 3rd March to declare that the Indian decision was illegal and to direct India to rescind it. Moreover, its application claimed compensation for the increase in costs due to the longer route that Pakistan planes now had to take to go to Dacca via Colombo.

Nani’s riposte was the preliminary objection that the council had no jurisdiction to deal with Pakistan’s compliant. India’s plea was that as a sovereign state it had the right to suspend the treaties under international law and well established state practice and usage. The jurisdiction of the council was only limited to one relating to ‘interpretation or application’ of the provisions of the treaties. Any other issues were outside the competence of the council. The ICAO Council however ruled against India and a month later, India appealed to the International Court of Justice at the Hague against the council’s decision. This appeal to the World Court was challenged by Pakistan.

The World Court hearing began on 20th June, 1972 with Nani as India’s chief counsel. It fell to Nani to present India’s case at the court’s three – hour opening session and thereafter. He advanced his arguments in great detail, marshalling historical facts in support.

The World Court delivered its judgment on 18th August, 1972. By 13 votes to 3 the court rejected the government of Pakistan’s objection on the competence and found that it had jurisdiction to entertain India’s appeal. However on the flipside by 14 votes to 2, it also held the council of International Civil Aviation Organization to be competent to entertain the application and complaint laid before it by the Government of Pakistan. However, the ruling on our objections will govern the council’s proceedings in the dispute from now on.

Ambassador of Washington

After the defeat of Indira Gandhi in the 1977, Shri Morarji Desai was placed on the Prime Ministerial throne. The 20 months of Emergency left Indian ambassador in Washington, Mr. Kewal Singh in bad light. In such a situation Morarji Desai rightly thought it fitting to appoint Shri Nani A. Palkhivala as the Indian Ambassador to Washington, which after much persuasion from Mr. Atal Bihari Vajpayee was taken up by Nani. On his appointment as the Indian Ambassador to the United States he resigned from the boards of all Tata companies and he rejoined them on his return in 1979.

When Nani reached Washington with Nargesh (wife) on 24th September, 1977, he could hardly have hoped to be received by President Jimmy Carter within a fortnight. Newly appointed ambassadors were often asked to wait for several weeks before being invited to present their credentials. Nani was invited to present his on 7th October, which, in its own way, was demonstrative of the respect in which he was held. The ceremony took place at the White House, and President Jimmy Carter’s reply to Nani’s credentials was:

‘… I welcome you personally, Mr. Ambassador. Your reputation in India as a champion of human rights and constitutional liberties, achieved at some personal risk at times, precedes you. I am certain that your mission will be effective and successful one and will contribute to that enhancement of our relations to which both of our countries are committed’

Nani spoke like a professional diplomat, even when asked the most embarrassing of questions, he would answer them calmly, without a trace of discomfiture. During his term as ambassador Nani accomplished the successful signing of the Delhi Declaration, in the drafting of which he played a significant role. It is not often that two countries, which are separated not only in terms of distance but also of culture and tradition and levels of economics development, feel it necessary and desirable to issue an affirmation of fundamental principles, ideals and values which they share. It must be remembered that Nani was chosen as ambassador precisely because it was hoped that he would facilitate frank discussion on vital issues at the highest level, which included nuclear proliferation, arms reduction, Pakistan and India’s non – alignment stand. In this Nani succeeded in great measure.

Nani was in constant demand during his stay in America. In his 20 months as ambassador he gave 171 lectures – an average of 2 a week. Two American universities bestowed honorary doctorates on him: Lawrence University, Wisconsin and Princeton. Princeton was the first to do so on 6th June, 1978. The citation was a fitting appraisal:

‘Defender of constitutional liberties, champion of human rights, he has courageously advanced his conviction that expediency in the name of progress, at the cost of freedom, is no progress at all, but retrogression. Lawyer, teacher, author, and economic developer, he brings to us as Ambassador of India intelligence, good humour, experience, and vision for international understanding’

 

With Sohrab P. Godrej, at the launch of the book Nani Palkhivala, Selected Writings. (1999)

“We keep on tackling breezily fifty-year problems with five-year plans, staffed by two-year officials, working with one-year appropriations, fondly hoping that somehow the laws of economics will be suspended because we are Indians”

“Bad economics may temporarily be good politics; but politics should be behind a fiscal law, and not in front of it”

“The best definition of ‘inflation’ is the simplest: When government spends more than it gets, and labour gets more than it gives, the empty feeling in your pocket is inflation.”

“You can no more expect a nation to have economic strength and growth by mere budgetary allocations than you can expect a child to grow up cultured and healthy because his father has set apart amounts to be spent on his education and medical care”

“The easy style of socialism mistakes Amiri Hatao for Garibi Hatao; it aims at leveling down and not leveling up; it is content to satisfy the pangs of envy when it cannot satisfy the pangs of hunger; and since it cannot create income or wealth, it plans for poverty and equal distribution of misery.”

“Gross national happiness should have been given priority over gross national product.”

NANI PALKHIVALA – THE ASTUTE CRITIC

“Among the nations of the world, India ranks very high in innate intelligence, but abysmally low in wisdom.”

“Indian democracy has reached its nadir because in our average politician we have a sordid amalgam of lack of intellect with lack of character and lack of knowledge.”

“We, as a nation have some fine qualities, but a sense of value of time is not one of them.”

“The bane of India is the plethora of politicians and the paucity of statesmen.”

“We have too much government and too little administration; too many public servants and too little public service; too many controls and too little welfare; too many laws and too little justice”

“Today the university student is aware

that what he knows does not count in the examination half as much as WHO he knows”

With T. Sadasivam and Bharat Ratna recipient M. Subbulakshmi at the Dadabhai Naoroji Memorial Prize Fund’s function. (1994)

“A nation progresses gloriously when knowledge and power are combined in the same individual. It faces a grave crisis when some have knowledge and others have power”

“We must get away from the fallacy of-the legal solubility of all problems.”

NANI PALKHIVALA – THE TAX CONNOISSEUR

“It is a truism, and like most truisms often forgotten, that taxes, like water, have a tendency to find the lowest level. In the last analysis, almost all taxes ultimately hit the common man.”

Delivering one of his legendary budget speeches to the multitudes gathered at Brabourne Stadium.

“Every budget contains a cartload of figures in black and white – but the stark figures represent the myriad lights and shades of India’s life, the contrasting tones of poverty and wealth, and of bread so dear and flesh and blood so cheap, the deep tints of adventure and enterprise and man’s ageless struggle for a brighter morn. “Our people, like any other, fall into three segments:

1. Those who would be honest, however heavy the burden;

2. Those who would be dishonest, however light the burden; and

3. Those (and they constitute the overwhelming majority) who are basically not dishonest but the nature of whose response to the law is conditioned by the quality of the law.

Our tax legislation ignores the first class, is preoccupied with the second, and alienates the third.”

“There are several socialist countries in the world, but India is the only country where income-tax and wealth tax can together amount to more than the total income.”

Leaving the Supreme Court with, from left, Ravinder Narain, Tehmton R. Andhyarujina and Jimm

NANI PALKHIVALA – THE CONSTITUTIONAL LEGEND

Nagesh feeding Nani a slice of cake at his 75th birthday. To his left, M. R. Pai and M. A. Rane. (1995)

“The constitution is not a jellyfish; it is a highly evolved organism. It has an identity and integrity of its own, the evocative Preamble being its identity card. It cannot be made to lose its identity in the process of amendment.”

“The Constitution was meant to impart such a momentum to the living spirit of the rule of law that democracy and civil liberty may survive in India beyond our own times and in the days when our place will know us no more.”

“The Constitution is a part of the great heritage of every Indian. Its founding fathers wanted to ensure that even while India remained poor in per capita income, it should be rich in individual freedom.”

“Ours is a noble Constitution, worked in an ignoble spirit.”

NANI PALKHIVALA – THE TRUE INDIAN

“We have millions of Bengalis, millions of Maharashtrians, millions of Tamils – but very few Indians.”

“Democracy involves the co-operation of all perceptive citizens in the active work of running the country. It means payment to the state, not only in taxes but in time and thought…”

“It is unfortunate that our government keeps the nation’s most outstanding men out, standing.”

Receiving his Doctor of Laws from William G. Bowen, President of Princeton University. (1978)

“The nagging question which will not go away is – is India a collection of communities or is it a nation? In other words, is India a state without a nation? Unfortunately, the most pronounced trait of the Indian politician is to put himself first, his own party second, and his country figures nowhere in his calculations.”

“A democracy without discipline is a democracy without a future”

“A nation’s strength lies not so much in its wealth as in its character. A nation with a future has to be a nation with character. It is when character saps that you have the phenomenon of widespread evasion.”

“Perhaps there is no other country on earth which has in such ample measure all enterprise and skills needed to create national wealth, and which takes such deliberate and endless pains to restrict and hamper its creation.”