In last week's column on Nani Palkhivala, reproduced was what his student, now the foremost advocate of India and a presidential nominee to his country's Rajya Sabha, Fali Nariman, had written about him.

One sentence, "Almost single-handedly he saved our constitution from being amended (by a majoritarian parliament) so as to take away its basic democratic features," needed clarification, which was sought from Fali.

How and why, I asked him?

It was all a question of constitutional fundamental rights, Nariman explained. Palkhivala not only grew up with the Indian constitution but contributed in large measure to its interpretation. He was a champion and saviour of the fundamental rights enshrined therein.

Fali had the privilege of appearing with him in 1967 for the petitioners in what is known as Golaknath's case, when a bench of 11 judges of the Supreme Court (constituted for the first time) heard arguments as to whether any part of the fundamental rights guaranteed in India's constitution could be abrogated or changed by a constitutional amendment - by an amendment passed by the requisite two-thirds majority of parliament.

At that time, the ruling party had more than a two-thirds majority in each of the houses of parliament. Chief Justice Subba Rao presided over the bench and managed to forge a narrow majority of six to five for the view that none of the fundamental rights were amenable to the amending power in the constitution. The battle then was mainly over property rights, and many members of parliament were disturbed by the pronouncement and went ahead with constitutional amendments.

Six years later in 1973, a larger bench of 13 judges of the Supreme Court was constituted, presided over by Chief Justice Sikri to consider the validity of the 24th, 25th and 29th amendments, but more basically to consider the correctness of the decision in the Golaknath case. This 1973 case is known as Keshavananda or the Fundamental Rights case. This time, the court held, again by a thin majority of seven to six, that although no part of the constitution, including fundamental rights, was beyond the amending power (Golaknath was thus overruled), one thing was certain: the basic structure of the Constitution could not be abrogated even by a constitutional amendment.

Palkhivala was the leading advocate in each of these two cases. But his greatest triumph was still to come. In 1975, a bench of 13 judges was hastily assembled under the chief justiceship of A.N. Ray to once again consider whether the power of amending the constitution was restricted by the Basic Structure theory. This was Palkhivala's finest hour. He argued for two days, on November 10 and 11, eloquently protesting against the Union government's application for reconsideration of the Keshavananda decision. Some of the judges accepted his argument on the very first day, the others on the next, all except for the Chief Justice who, by the end of the second day, was almost reduced to a minority of one.

When the court assembled on the morning of November 12 Chief Justice Ray threw in the towel. He tersely pronounced that the bench was dissolved, and the judges rose. An inglorious end to an unmeritorious beginning. The proceedings do not find a place in any of the law reports nor in fact in the annals of the Supreme Court of India. There is no record of the order passed. Mention is only made of it in the invaluable work by India's leading constitutional historian, H M Seervai, 'Constitutional Law of India' (4th edition, pub. 1993).

But Justice Khanna - loved, respected and revered by India's legal fraternity - was on the bench, and it is Khanna who recalls in his memoirs "that the height of eloquence to which Palkhivala had risen [during the hearing] has seldom been equalled and has never been surpassed in the history of the Supreme Court".

Great praise from one great and brave man about another.

To Fali's mind, Palkhivala's single most important contribution to Indian constitutional jurisprudence is the dogged determination with which he argued, protected, and saved his country's fundamental rights when they were in need of protection. In 1971 the ruling majority party introduced a Trojan horse into the chapter on fundamental rights, in the form of Article 31C of the constitution. It was an Article which did not confer any rights but took them away. As enacted, it prevented citizens from questioning any law passed by parliament, or by any state legislature, as abrogating fundamental rights, if the law contained a declaration that it was to give effect to any of the directive principles of state Policy in Part IV of the Constitution, and if the law did contain such a declaration, no court, not even the Supreme Court, could question it.

It was only after the brilliant arguments of Palkhivala and some others in Keshavananda case that the government of the day, through its solicitor-general, hesitatingly conceded that the declaration could after all be justiciable in the courts of the land. But Nani did not give up. The case went on, and in Keshavananda, the bench of 13, upheld Article 31C limiting it to social welfare laws, but it struck down the declaration excluding judicial review. But power and iniquity grow on what they feed. It was in 1976, during the emergency declared in June 1975, that most opposition members were in jail, that the 42nd amendment was passed by both houses and the scope of Article 31C was considerably widened. All or any laws enacted by parliament or state legislatures to give effect to all or any of the directive principles of State Policy were henceforth to be immune from challenge even if they violated the fundamental rights guaranteed under Articles 14 or 19 (Article 19 includes the guarantee of free speech and a free press). Once again Palkhivala stepped into the breach and came to the rescue.

In the Minerva Mills case he conceded expressly that the original Article 31C was valid - social welfare laws were beyond challenge under the fundamental Rights Chapter (Article 14 or 19 or 31) - thereby putting an end to the canard that he was only interested in upholding property rights. He did contend however that the extended and amended Article 31C was violative of the basic structure of the constitution and in May 1980 a constitution bench of five judges agreed.

Personal freedom, says Fali, is like oxygen in the air. We don't realize its worth until it is withdrawn - and then it is too late. Few citizens of India realize that if Article 31C in its extended form, under the 42nd amendment, had remained a part of their constitution and not been struck down in the Minerva Mills case, not only parliament, but more realistically any state legislature, by ordinary law could have effectively censored the press and prohibited public speaking on any topic unless a police permit was obtained on the specious declaration that it was to implement directive principles of State Policy. This is the liberty that Nani Palkhivala helped save, and for this all the lawyers of India and all its citizens must forever be grateful and beholden to him.

Now to the mangled and mauled Constitution of the Islamic Republic of Pakistan under which it is so effectively misgoverned. Proclaimed on August 14, 1973, whilst its proclaimer, the president converted to prime minister, Zulfikar Ali Bhutto, was toasting the dawn of democracy in at a celebratory luncheon party, in his waistcoat pocket was a presidential order. He took aside the newly appointed president, Fazal Elahi Chaudhry, produced a pen, and asked him to put his signature to this document of infamy, which he counter-signed as prime minister, and which is now embodied in letters of lead in the history books of our constitutions.

Presidential Order No.F.24(1)/73-Pub. is notified in the Gazette of Pakistan, Extra, of August 15 1973: "The following Order made by the president on the 14th August, 1973, is hereby published for general information."

This Order was made under the Proclamation of Emergency issued on November 23, 1971, which was still in force. It bluntly proclaimed:

"Now, therefore, in exercise of the powers conferred by the said clause (2) of Article 233, the president is pleased to declare that the right to move any court, including the right to move the Supreme Court, vide clause (3) of Article 184, for the enforcement of the fundamental rights provided for in Articles 10, 15, 16, 17, 18, 19, 23, 24, 25 and 27 of the Constitution, and all proceedings pending in any court which are for the enforcement, or involve, the determination of any question as to the enforcement of any of the said rights shall remain suspended for the period during which the said proclamation is in force."

Our great democrat, Zulfikar Ali Bhutto, father of the 1973 Constitution, wasted no time. Before nightfall, every politician who opposed his scheme of things was picked up and incarcerated. And they so remained until in 1977 the zealous General Ziaul Haq toppled Bhutto and jailed him.

Yesterday, according to a news report, our current law lions were to meet, hold a national conference, and 'discuss the restoration of the 1973 Constitution in its original form [it had a life of four hours] and the Legal Framework Order.' This morning we should be enlightened as to how the discussions proceeded - who roared, who squeaked, and who remained silent.