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TMI Blog1970 (12) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... be read here : No. 21/14/70-Poll.III Government of India Ministry of Home Affairs New Delhi the 6th September 1970 ORDER In exercise of the power vested in him under Article 366(22) of the Constitution, the President hereby directs that with effect from the date of this Order His Highness Maharajdhiraja Madhav Rao Jiwaji Rao Scindia Bahadur do cease to be recognised as the Ruler of Gwalior. By order and in the name of the President. Sd./- L. P. SINGH Secretary to the Government of India All these orders were notified together in the Gazette of India of September 19, 1970, Part II. They resulted in the forthwith stoppage of the Privy Purses received by the Rulers and the discontinuance of their personal privileges. These writ petitions under Article 32 of the Constitution were filed by some of the Rulers as test cases to question the orders. They ask for a writ, direction or order, declaring the Presidential Order to be unconstitutional, mala fide, ultra vires and void, and for quashing it, a writ, direction or order declaring that the several petitioners continue to be Rulers and thus to be entitled to their respective Privy Purses and personal rights and privileges and a furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere free to accede to any of the two Dominions of India or Pakistan or to continue as independent sovereigns. A reference to the Indian Independence Act, 1947 appears necessary at this stage. The preamble of the Act stated that the Act was to make provision for the setting up in India of two independent Dominions and to provide for matters consequential on or connected with the setting up of those Dominions and-to substitute certain provisions in the Government of India Act 1935. Section 1 of the Act fixed the 15th day of August, 1947 as the appointed ate, from which the two independent Dominions were to come into existence. Section 2 demarcated their territories, but without prejudice to the generality of the provisions of sub-section (3) of that section, the accession of Indian States to either of the two Dominions was not to be prevented. Immediately afterwards the India (Provisional Constitution) Order 1947 was promulgated and certain substitutions were made in the Government of India Act 1935 by the Governor-General by virtue of subsection (2) of Section 8 read with section 9 of the Indian Independence Act. Sections 5 and 6 of the Government of India Act 1935 were replaced by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time being exercising the powers of the Ruler of the State whether by reason of the Ruler's minority or for any other reason. (5)In this Act a State which has acceded to the Dominion is referred to as an acceding State and the Instrument by virtue of which a State has so acceded construed together with any supplementary Instrument executed under this section, is referred to as the Instrument of Accession of that State. (6)As soon as may be after an Instrument of Accession or supplementary instrument has been accepted by the Governor-General under this Section, copies of the Instrument and of the Governor-General's acceptance thereof shall be laid before the Dominion Legislature and all courts shall take judicial notice of every such instrument and acceptance." In furtherance of these new provisions, the Instruments of Accession were executed on different dates, after negotiations between the Government of India and the Rulers, but nothing turns upon the date of an Instrument. Many Rulers had immediately signed Instruments of Merger, transferring full and exclusive authority, jurisdiction and powers in relation to the governance of their States to the Government o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. This covenant is a detailed document and is reproduced in the White Paper and is also exhibited in the. case before me. It is not necessary to refer to all its terms but. the relevant ones may be noted here. The Covenanting States agreed to unite and integrate their territories into one State with common Executive. Legislature and Judiciary. Room was kept, for other Rulers to join later if they were so minded. The Covenant established a Council of Rulers, with a right to elect a President (to be called the Rajpramukh of the United State) and one Senior Vice-President and two Junior Vice- Presidents. The President and the Senior Vice-President were to hold office during their lifetime and the Junior Vice-Presidents for a term of five years. The Rajpramukh was to be aided and advised by a Council of Ministers to be chosen by him and they were to hold office during his pleasure. July 1, 1948 was fixed for making over the administration of the Covenanting States to the Rajpramukh including a transfer of all assets and liabilities of the State and of the Scheduled Areas. The Rajpramukh had jurisdiction to make laws for the peace and good Government of those areas whether with or with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e States and not to their successors for whom provision will be made subsequently. (2)The said amount is intended to cover all the expenses of the Ruler and his family including expenses of his residence, marriages and other ceremonies, etc. and shall subject to the provisions of paragraph (1) neither be increased nor reduced for any reason what- soever. (3)The Rajpramukh shall cause the said amount to be paid to the Ruler in four equal instalments at the beginning of each quarter in advance. (4)The said amount shall be free of all taxes whether imposed by the Government of the United State or by the Government of India. ARTICLE XII (1)The Ruler of each Covenanting State shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of his making over the administration of that State to the Raj Pramukh. (2)He shall furnish to the Raj Pramukh before the first day of August 1948 an inventory of all immovable properties, securities and cash balances held by him as such private property. (3)If any dispute arises as to whether any item of property is the private property of the Ruler or State pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment of India. Secretary to the Government of India, Ministry of States". Further agreements were devised for each of such other States as might join later and the Government of India concurred in the same way with such agreements. A fresh Instrument of Accession was executed by the Raj- pramukh on behalf of the United State of Madhya Bharat. Special provisions were made for avoiding legislative conflict, and for any future agreement between the Rajpramukh and the Government of India. Such agreements were to form part of the Instrument of Accession. It was however expressly provided by clause 6 as follows : "6. The terms of this Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947, unless such amendment is accepted by the Raj Pramukh of the United State by an Instrument supplementary to this Instrument." The Governor-General of India accepted this Instrument of Accession on September 13, 1948. By then 23 Rulers bad joined the United State. On November 24, 1949, on the passing of the Constitution of India, the Rajpramukh issued a Proclamation after a resolution of the Covenanting Rulers. It affirmed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teed its provisions. If treated as an Act of State it ended with the recognition. It was also an Act of State on the part of the Rulers who surrendered their lights but the provisions that they evolved for the joint governance of their territories made a constitution proper of which the Courts were to take judicial notice and apply according to their tenor as occasion demanded. From these documents flowed consequences which were binding alike upon the Covenanting States, the United State of Madhya Bharat and the Government of India and the Courts-. None of them could avoid these consequences. The Merger agreements were much simpler documents. As an illustration I may refer to the Bilaspur Merger agreement. It was executed on the 15th August 1948 by the Raja of Bilaspur. It consisted of five articles. By the first article the Raja ceded to the Dominion government full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State, agreeing to transfer the administration on October 12, 1948. By article 2 the Raja was to receive annually a sum of ₹ 70,000/as privy purse free of taxes. The sum included ₹ 10,000/- as an allowance for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Agreement to the Nawab would be continued to his successor. The course of historical events is different according to the States emerged in or merely acceded to the Dominion. The merged States were either incorporated in the existing Governor's Provinces or, were administered centrally as Chief Commissioner's Provinces. I am not concerned with these historical events and, therefore, I refrain from saying anything here. The next step in the chain of historical events in regard to Gwalior came with the Constitution which was accepted by the Rajpramukh in his Proclamation. Special provisions were incorporated in the Constitution to which reference may be made here. Four Articles in the Constitution are only relevant and are quoted here. Article 291 was amended by the Constitution (Seventh Amendment) Act, 1956 by deleting clause (2) but is quoted here as it was before the Amendment : "291 (1) Where under any covenant or agreement entered into by the Ruler of any Indian State before the commencement of this Constitution, the payment of any sums, free of tax, has been guaranteed or assured by the Government of the Dominion of India to any Ruler of such State as Priv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler;" They are intact till today. So also two other Articles, namely, 362 and 363. of these the former does not apply to the State of Jammu and Kashmir, but the latter does. They may be quoted here : "362. In the exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in clause (1) of article 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State. 363 (1). Notwithstanding anything in this Constitution but subject to the provisions of article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... too became part of the Union of India on a later date. They were Hyderabad, Mysore and Jammu and Kashmir. The Indian States covered about 48 per cent of the area of the Indian Dominion. The population of this area formed 28 per cent of the total population of the Dominion. All the Rulers (including the Rajpramukhs of the Unions) issued proclamations of which reference has earlier been made in relation to Gwalior. On the merger or integration of the States with the Union of India the Rulers were left with a Privy Purse and a few of their personal privileges and properties. The Privy Purses were fixed with due regard to the incomes of the Rulers, before integration with a ceiling of ₹ 10 lakhs. Eleven Rulers were to be paid more than that sum as a personal Privy Purse. The total amount of the Privy Purses came to ₹ 58 crores. Today the highest Privy Purse is ₹ 26 lakhs per annum to the Ruler of Mysore and the lowest is ₹ 192 per annum to the Ruler of Kotodia. The Privileges of the Rulers included many items. A memo- randum on these privileges was issued by the Ministry of States in 1949. it did not contain an exhaustive list but was drawn up to inform Provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resident in his speech to the Houses gave expression to the policy of Government. A Resolution recommending the abolition was moved and passed in the Rajya Sabha. A Bill was then moved in the Lok 4-L744Sup.CI/71 Sabha intituled. The Constitution (Twenty Fourth Amendment) Bill 1970. It consisted of three clauses and a short statement of Objects and Reasons. 'the Statement read : "The concept of rulership, with Privy Purses and Special Privileges unrelated to any current functions and social purposes, is incompatible with an egalitarian social order. Government have therefore decided to terminate the Privy Purses and Privileges of the Rulers of former Indian States. Hence this Bill. 14-5-1970 Y. B. CHAVAN" The Address of the President to the Joint Session of Parliament, the Resolution above referred to and the Statement of Objects and Reasons all gave identical reasons. The Bill was voted upon in the Lok Sabha on September 2, 1970. 332 votes for and 154 votes against it, were cast. It was considered in the Rajya Sabha ,on September 5, 1970 and was defeated, 149 voting for and 75 against it. It failed in the Rajya Sabha to reach the requisite majority of not less than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one-fourth of what they were previously enjoying. He said that there was nothing by which the Rulers could be forced to merge their States with India and that the Privy Purses were quid pro quo for parting with the ruling power by the Rulers and the dissolution of their States as separate units. He regarded this as a small price for the bloodless revolution and avoidance of mischief. He exhorted the Constituent Assembly that the Indian Peoples on their part should ensure fully the guarantee given to them and concluded: "Our failure to do so would be a breach of faith and seriously prejudice the stabilization of the New' Order". The same sentiments were reiterated by Mr. V. P. Menon (who was the Secretary to the Ministry) in his recent book "The Story of the Integration of the Indian States",(1961) pp. 461 and 462. He cataloged the number of villages, palaces, museums, buildings, stables garages, fleets of motor cars, aeroplanes etc. surrendered by the Rulers. He pointed out that cash balances were to the tune of ₹ 77 crores and that palaces in Delhi alone were worth several lakhs of rupees. According to him, the price paid as Privy Purses was not too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as considered outmoded or that some persons held the view that it should not be continued. According to the petitioners the gaddi of a Ruler had to be filled in accordance with the law and custom of the family and could not be left vacant. The vast power to withdraw recognition from all the Rulers at the same time without nominating any successor could not and did not flow from the definition of a Ruler in Article 366(22) which contemplated the Continuance of a Ruler who had signed the Merger Agreement or his successor. The President was thus guilty of a breach of his duties under the Constitution and acted outside his jurisdiction. The act of the President was thus said to offend Articles 53, 394, 295 291 and 362 of the Constitution. In supporting their petition under Article 32, the petitioners claimed that important questions of deprivation of property and of personal liberty were involved. As illustrations the petitioners contended that the right to receive Privy Purses was a right to property of which the Rulers stood deprived as also of other personal properties and benefits of exemptions under diverse laws was also an inroad upon property rights. Since there was no authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and a political act was not questionable in Courts of Law. The bar of Article 363 covered such a case also because there was nothing to show that any recognition carrying with it a Privy Purse and Privileges was ever intended to be perennial even when the State policy demanded an abolition. The Privy Purse itself being-in the nature of a political pension, a claim to it was not property and no claim could arise if it was stopped. Article 291 did not create any legal right but only laid down the source and method of payment of Privy Purse guaranteed by the Dominion of India and even if it were assumed that it was private property or that other property rights were affected by the withdrawal of the recognition, the matter was not justiciable because of the bar of Article 363 which applied to Articles 291 and 362. The pleadings in the case are long but the points are few. The case involves a positive and a negative approach in so far as this Court-is concerned. The positive approach involves the consideration of the reliefs that can be granted and the negative approach the bar operating under Article 363. The first approach requires consideration of the validity of the action of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am of Hyderabad when the latter claimed rights of kingship. It is printed as Appendix I to the White Paper. This is what the Viceroy said " The Sovereignty of the British Crown is supreme in India, and therefore no ruler of an Indian State can justifiably claim to negotiate with the British Government on an equal footing. Its supremacy is not based only upon treaties and engagements, but exists independently of them and, quite apart from its prerogative in matters relating to foreign powers and policies, it is the right and duty of the British Government, while scrupulously respecting all treaties and engagements with the Indian States, to preserve peace and good order throughout India. The consequences that follow are so well known, and so clearly apply no less to Your Exalted Highness than to other Rulers, that it seems hardly necessary to point them out. But if illustrations are necessary. I would remind Your Exalted Highness that the Ruler of Hyderabad along with other Rulers received in 1862 a Sanad declaratory of the British Government's desire for the perpetuation of his House and Government, subject to continued loyalty to the Crown : that no succession in the Masn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns not under the Crown's authority, would be conditional on the agreement of the States. This was particularly directed against an Indian Government responsible, to the Indian Legislature. To keep the Indian Government away from the States, after the advent of the Government of India Act, 1935 the old political department under the charge of the Governor-General disappeared. Previously the Governor-General's Executive Council had left the States entirely to the Governor- General. The Act of 1935 formed the basis of a personal relationship between the States and the rest of India. This meant a reversal of the policy and the British Indian Executive was slowly deprived of all constitutional status vis-a-vis the States. A Crown Representative was introduced as the link between the States and British India. The Government of India Act 1935 had visualised a federation between British India and the Indian States but that scheme did not materialise. The Indian States were anxious to create sovereign States but the Crown prerogatives in respect of them continued. Lord Linlithgow's declaration promised no commitment about the States without their consent in any future constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason of which the British were paramount but because they were paramount, therefore, they had paramountcy rights. When paramountcy lapsed it did not fall on the shoulders of Indian Government. The right to recognise a Ruler from out of several claimants was not an act of paramountcy. The selection had to be in accordance with law and custom. It was not the arbitrary power which made the conferral of Rulership a gift from the Crown. There is no provision to that effect in the Constitution or even the Covenants and Agreements. That the Constitution gave the right to the President to recognise a Ruler for the time being, is apparent enough but it cannot be stretched to give a paramountcy of the same character as that enjoyed by the British crown. To claim such a parmountcy one has to ignore completely the arrangements by which the Rulers parted with their territories and Ruling rights and were assured of their Privy Purses and privileges. These rights became constitutionally protected rights which so long as the Ruler's line was not extinct belonged to the Ruler for the time being. In one sentence when the guarantees were given by the Constitution, paramountcy, if any, went out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-Moulton L. J. Salaman v. Secretary of State for India() [1966] I K.B. 613 at 640) as 'a catastrophic change constituting a new departure', in the State of Saurashtra v. Menon Haji Ismail([1960] I S.C.R. 537 at 544). I have not been able to better that expression. I further pointed out that 'in civil commotion or even in war or peace, the State cannot act 'catastrophically' outside the ordinary law and there is legal remedy for its wrongful 'acts against its own subjects or even a friendly alien within the State". I may again reaffirm the observations in that case 'based upon the statement of the law by Lord Kingsdown in Secretary of State in Council for India v. Kamachee Boyl Sabha ([1859] 13 Moore P.C. 22). This is what I Said: "The question thus ,Is always : Did the State or its agents purport to act "catastrophically' or subject to the ordinary course of the Law? This question was posed in Secretary of State in Council for India v. Kamachee Boye Sahaba by Lord Kingsdown in these words : "What was the real character of the act done in this case? Was it a seizure by arbitrary power on behalf of the Crown of Great Britain, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf". Thus a rule of International Law formerly held the field that persons holding such rights are incapable of asserting them in the international sphere or in the Municipal Courts. The instrument may make them owners of rights and yet take away the remedy from them. This is the sense in which Tindal C.J. used the phrase 'lacking in vinculum jurists This position has now altered and there is a rethinking on the subject. It is now gradually gaining recognition that if there be 'some municipal legislation giving enforceability to the right, then the right can be claimed in a Municipal Court. This change of view followed the Advisory Opinion of the Permanent Court of International Justice in the jurisdiction of the Courts of Danzing in the matter of Railway officials in Danzing. (I) The rights given by a treaty received a broader acceptance there. This case gave an exposition of the. rights of individuals in the international sphere and the Municipal Courts. The argument of Poland in the case was that the agreement between Poland and Danzing regulating the conditions of employment of the Railway officials taken over in Railway Service, created rights only between Polan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i for they are the contracting parties. In so far as those guarantees became a part of our Constitution and were included in various statutes passed by Parliament such as the Income-,tax Act, the Wealth-tax Act etc., they would be enforceable according to the tenor of the Constitution ,and the other laws (subject of course to such bar. as the Constitution creates by Article 363). Then no question of an 'act of,State' or of 'imperfect obligations' arises. To sustain the President& act repudiating the rights and obligations on the basis of a discarded theory of 'imperfect obligations' would drain the constitution and the. laws of their efficacy by an executive act without amendment of the Constitution or the laws and that cannot be permitted. This is not a right for enforcement in foro Conscientiae to make good, or of which the performance could only be sught for by petition, memorial or remonstrance. This is a ,case for an action in a Court of Law if the dispute is not barred by the Constitution itself. Therefore there is no bar to the jurisdiction of this Court except that created by Article 363. The ambit of that bar will be worked out by me on the terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarded Articles 291 and 362 and by withdrawing the recognition of the Princes has acted ultra vires the Constitution. Under Article 73 the Executive power of the Union is co-terminous with the law making power of Parliament. When Parliament refused to amend the Constitution, the President's power did not extend that far by executive action. By his executive act the President has denuded articles 291 and 362 of their content for ever. The President was required to recognise the Rulers and has with one stroke withdrawn the recognition. He is trying to do indirectly what Parliament refused to dot directly that is to say remove articles 291,362 and 366(22) from the Constitution. This has, been done without a hearing to the Rulers and is in breach of accepted principles of natural justice. The rule of law prevails and no unconstitutional act of any authority, unsupported by law, can avail(1). The action is not only against the Constitution but it also affects a large body of tax and other concessions. Prominent among them are Wealth Tax Act 1957 Ss.2(p) and 5(1)(iii), Gift Tax Act 1958 S. 5(1)(xiv), Hindu Succession Act, 1956 S. 5(iii), Income- tax Act 1922 Section 4(3) (x); Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able successor the power to recognise a Ruler is implicit just as much as the power to withdraw recognition in suitable cases. The Union Government cannot escape this obligation by invoking paramountcy or some state policy. The obligation to recognise a Ruler is bound up with the other guarantees contained in articles 291 and 362. The definition in article 366(22) is merely the key to find a particular Ruler. The withdrawal of recognition from all the Rulers renders the guarantees as also the relevant articles of the Constitution inoperative. It could never be the intention of the Constitution that by an Executive act the operation of those articles would come to a stop. The action of the President has the indirect effect not only of abrogating these articles but also of rendering certain provisions in the Income-tax Act, Wealth Tax Act, the Gift Tax Act, the Codes of Civil and Criminal Procedures etc., completely otiose. Executive action can never be allowed to have that effect unless the power is explicitly conferred. The intention of Article 366(22) is exactly the converse of what the Union Government understands it to be. The answer of the first question is that the power of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, I need begin only with the Privy Purses, the stoppage of which is the direct consequence of the order withdrawing recognition. A preliminary point arises under article 19 whether the Rulers can be regarded as citizens. I have assumed this so far as I cannot see how otherwise they can be described. In H.H. the Maharana Sahib Shri Bhagwat Singh Bahadur of Udaipur v. The State of Rajasthan([1954] 5 S.C.R. 1, at page 6) it is laid down that "The appellant has also, since the Constitution, been a citizen of India, and his recognition as Ruler under Art. 366(22) of the Constitution has not altered his status, but as a citizen he is undoubtedly assured a privileged position." Therefore, the matter can be considered both under Article 1 9 and Article 3 1. In two cases of the Court Madhaorao Phalka v. State of Madhya Bharat([1961] 1 S.C.R. 957) and State of Madhya Pradesh v. Ranajirao Shinde and Anr.( [1968] 3 S.C.R. 489) pensions and cash grants were regarded as property. The reason for the decision is not as fully given as the importance of the subject required and, therefore, I permit myself to say a few words here. I shall show later that the obligation to pay the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s any other property and the only difference is in the mode of enjoyment. The creditor realizes this ownership by compelling the debtor to perform his obligation. As illustration he gives a catalogue of passive 'rights of ownership. Anson (Principles of Law Contract) supports him by pointing out that an obligation is a right of control exercisable by one person over others for acts which have a money value. The dynamic theory of obligations regards a debt as a claim to 'an equivalent in a value to a floating charge against the generality of things which are the properties of the debtor'. From this is developed the notion of a credit-debt where property rights arise from a promise, express or implied in respect of ascertained or readily ascertained sums of money. Thus a debt or a liability to pay money passes through four stages. First there is a debt not 'yet due. The debt has not yet become a part of the obligor's 'things' because no net liability has yet arisen. The second stage is when the liability may have arisen but is not either ascertained or admitted. Here again the amount due has not become a part of the obligor's things. The third stage i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;. The article makes the payment obligatory. The words when expanded read 'shall be charged on and shall be paid out of etc'. the direction to pay is in no uncertain terms. The article is thus self-ordaining. The recipient is mentioned in (b) where the Article says 'and the sums so paid to any Ruler' and this shows who is to be paid. Therefore, the article in addition to the source and manner also lays down that it shall be paid and paid free of taxes on income to the Ruler. The Article thus not only creates a liability but also a right in the Ruler. It is self-supporting and self- ordaining. The learned Attorney-General contends that even accepting all this as a valid construction of the article 291 of the Constitution, the petitioners must fail because they are seeking either to enforce the Covenants and Agreements or on seeking to enforce a provision of the Constitution relating to such Covenants and Agreements. The same argument is also raised in respect of articles 362 and 366(22). According to him the petitioners stand excludedby Article 363. This is the crux of the case before us. The answer to this question depends on the meaning to be attributed to the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been continued in operation after such commencement'. This shows that a dispute relating to the enforcement, interpretation or breach of any treaty etc. is barred from the Courts' jurisdiction. The words 'arising out of the provisions, of a treaty etc.' limit the words. Thus if a treaty, covenant etc. is characterised as forged by any party, that would not be a dispute ,arising out of any provision of a treaty, covenant etc.. That dispute would be whether there is a genuine treaty or not. This illustration is given by me to show that the exclusion is not all-embracing. The dispute to be barred must be arise from a provision of the treaty etc. The second part .bars the Courts' jurisdiction 'in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty etc.' Here the dispute must be in respect of a right which accrues under a provision of the Constitution or the liability or obligation must arise similarly from a provision. The words 'provisions of this Constitution' are not left unqualified. They could not be left unqualified for then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt theme. It is the dominant purpose and theme which alone determines the quality of the provision. I shall now apply this test to article 291,362 and 366(22) beginning with article 362 since to my mind it is the plainest of all and is definitely within the description. It provide directly for the enforcement of guarantees and assurances by requiring Parliament, the Legislatures and the Executive Governments of the Union and the States to have 'due regard' for those guarantees and assurances. The article can only be used to support a claim to rights, privileges and dignities. Its dominant theme is the rights, privileges and dignities of the Rulers under Covenants and Agreements and therefore, the provision is 'relating to' Covenants and Agreements. The reference to Article, 291 does not influence the application of the test to Article 291 because that is merely a legislative device and does not tie the two Articles together. It only saves repetition of certain phrases already used in Article 291. If Article 362 were earlier in the Constitution the phrase would have occurred in it and would have been referred to in the other article. Therefore no conclusion can be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he President would never do so. But who would have thought in 1950 that recognition of. all the Rulers would be withdrawn by a single order? Therefore, extreme examples are necessary to solve extreme cases. I have questioned the action of the President because the bar of Article 363 does not operate. Neither is the recognition of an original signatory of a Covenant or Agreement involved, nor the recognition of a successor. The act is not even one which the Court leaves alone because the dis- cretion is exercised in a manner and to the extent a President in the proper discharge of his functions can go. What is done is to take away recognition from all Rulers and as such power does not flow from Article 366(22), the bar of Article 363 does not apply to such a dispute. It arises neither from the Covenants etc. nor from the ,provisions of the Constitution. It ceases to have the protection of Article 363. Article 363 immediately follows Article 362. Although not much significance can be attached to the collocation of the articles, it is to be noticed that the exclusionary article wants us to search for a provision relating to a treaty etc. before staying our hands. It does leave the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Attorney-General that it indicates only the source and manner of payment rather destroys the case for the application of article 363 than lends support to it. The mention therein of Covenants and Agreements is for its own purpose so that the amounts need not be specified. In this connection there is no difference between Art. 290A and 291 although the learned Attorney-General made much of the mention of the name of the Travancore Devasom Fund in the former and absence of the names of the Rulers in the latter, or again the mention of a specific sum in the former and no sum in the latter. The article is self sustaining and self- ordaining. Its purpose is not relating to Covenants etc. but to something else. Article 291 differs from Articles 362 and 366(22) in this that the Privy Purses have already been settled and one has not to enforce the Covenants at all. One does not enforce the Covenants but the mandate of the Article itself. Whenever the Privy Purse is modified under the terms of a Covenant, the Article is again invoked- ab extra. That dispute isnot related to Article 291 and the bar of Article 363 operates. That matter is outside the jurisdiction of Courts. It is only w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent cannot claim a total immunity for his acts from the scrutiny of the Court. Neither the paramountcy of the Grand Moghul who could give Subehdarships to his Generals as he pleased nor the paramountcy of the British Crown has descended to him. This eorror is further enhanced by too facile a reading of Article 363. Any tenuous connection between an Article and the Covenant or Agreement, how-ever remote, is not to be considered sufficient to make a provision fall within the description in the latter part of Article 363. Due, regard was not paid to the fact that the draftman would have re- ferred to numbers of Articles if the disputes of every kind under those article stood excluded. The learned Attorney-General relied in particular on some cases which he said had laid down that the act of recognition is a political act, that it cannot be questioned before a Court of' Law. He also referred to cases in which the question of the application of article 363 had arisen. My brother Hegde in his judgment has sufficiently considered them and I am in such agreement with him that I find it unnecessary to repeat what he has said' there. I adopt his reasoning. In conclusion I hold the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er herein-as the Ruler of Gwalior. Under the Madhya Bharat Gangajali Fund Trust Act, 1954, enacted by the State Legislature the Ruler of the State of Gwalior is one of the three trustees authorised to manage the Gangajali Fund settled by the State and to apply the income thereof for charitable purposes. On September 2, 1970, a Bill intituled the Constitution. (Twenty fourth Amendment) Bill, 1970, and providing that ."Articles 291 and 362 of the Constitution and clause (22) of Article 366 shall be omitted"- was introduced in the Lok Sabha. The Bill was declared passed with the amendment that the provisions thereof shall come into oporeation with effect from October 15, 1970. On September 5, 1970, the motion for consideration of the Bill did not obtain, in the Rajya Sabha, the requisite majority of not less than two- thirds of the Members present and voting as required by Art. 368 of the Constitution. The motion for introduction of the Bill was declared lost. A few hours there-after the President of India purporting to exercise power under clause (22) of Art. 366 of the Constitution signed an instruments withdrawing recognition of all the Rulers. A communication to;, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guaranteed to the petitioner under Arts. 14, and 19 and 31 of the Constitution were infringed. The petition was later amended with leave of the Court and it was claimed that the order infringed the guarantee under Art. 21 of the Constitution also. The Union of India by their affidavit contended, inter alia, that the petition was not maintainable because the source of the right to receive the privy purse and to be accorded the privileges ,claimed was a political agrement and the privy purse was in the nature of a political pension; that Art. 291 did not impose any obligation upon the Union to pay the privy purse; that Arts. 291 and 362 of the Constitution did not in-vest the petitioner and the other Rulers with any enforceable rights; that recognition of the Rulers under Art. 366(22) was a "matter of State policy" and the President was competent to pass the order dated September 6, 1970; that the order was not made for a collateral purpose as alleged; and that by the order the guarantee of Arts. 14, 19(1)(f), 31(1) or any other article of the Constitution was not infringed. By the order of-the President withdrawing his recognition as Ruler, the petitioner is denied the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eby respectively assigned to them, that is to say- (22)"Ruler" in relation to an Indian State means the Prince, Chief or other person by whom any such covenant or agreement as is referred to in clause (1) of article 291 was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler." Clause (15) of Art. 366 defines an "Indian State" as meaning "any territory which the Government of the Dominion of India recognised as such a State'.-" Article 291, as amended by the Constitution (Seventh Amendment) Act, 1956, reads as follows: "Where under any covenant or agreement entered in by the Ruler of any Indian State before the commencement of this Constitution, the payment of any sums, free of tax, has been guaranteed or assured by the Government of the Dominion of India to any Ruler of such State, as privy purse-- (a) such sums shall be charged on, an paid out of, the Consolidated Fund of India; and (b) the sums so paid to the Ruler shall be exemept from all taxes on income." The definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he executive branch of the Union. The plea that in recognising or "de-recognising" a person as a Ruler, the President exercises "political power which is a sovereign power and that after an order of de-recognition "no erstwhile Ruler can make a claim in respect of the Rulership or the privy purse or any of the privileges' since the relevant covenants under which the rights of the Rulers were recognised were " political agreements" and the rights and obligations thereunder were liable to be varied or repudiated in accordance with "State policy" in the interests of the people also receives no countenance from our Constitution. The first branch of the argument is inconsistent with the basic concept under our Constitution of division of State functions; the second is inconsistent with the history of events between 1947 and 1949, and the third receives, for reasons to be presently stated, no support from the. relevant constitutional provisions. Whether the Parliament may by a constitutional amendment abolish the rights and privileges accorded to the Rulers is not, and cannot be, debated in this petition, for no such constitutional amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritories of the Princely States before the commencement of the Constitution clearly indicates that the recognition of the status of the Rulers and their rights was not temporary, and also not liable to be varied or repudiated in accordance with "State policy". Power of the President to determine the status of the Rulers by cancelling,or withdrawing recognition to effectuate the policy of the Government to abolish the concept of Rulership is therefore liable to be challenged in these petitions. The circumstances in which the constitutional provisions under cls. (15) and (22) of Art. 366, and Arts. 291 and 362 were incorporated may be briefly set out. In the era before 1947 the term "State" applied to a political community occupying a territory in India of defined boundaries and, subject to a single Ruler who enjoyed or exercised, as belonging to him, any of the functions and attributes of internal sovereignty duly recognised by the British Crown. There were-, in India more than 560 States : forty out of those States had treaty relations with the Paramount Power : a larger number of States had some form of engagements or sanads, and the remaining enjoyed in one o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The British Parliament decided to set up the two Dominions of India and Pakistan, and promulgated on July 18, 1947, the Indian Independence Act, 1947. By s. 1, two new independent Dominions of India and Pakistan were set up as from August 15, 1947, and s. 7 of the Act provided : "(1) As from the appointed day- (a) His Majesty's Government in the United Kingdom have no responsibility as respects the government of any of the territories which, immediately before that day, were included in British India; (b) the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States, all obligations of His Majesty at that, date, towards Indian States or the rulers thereof and all powers, rights, authority or jurisdic- tion exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, suffrance or other-wise; and "Provided that, notwithstanding anything in paragraph (b) or paragraph (c) of the sub- section, effect shall, as nearly as may be continued to be given to the provisions of any such agreement as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iations for accession of the States were soon completed and instruments, of accession were executed by the heads of the Indian States. Simultaneously, Standstill Agreements, the acceptance of which was made by the Government of India a condition of accession by the States concerned, were also entered into between the Dominion Government and the acceding States. The Standstill Agreements recited : "Whereas it is to the benefit and advantage of the Dominion of India as well as of the Indian States that existing agreements and administrative arrangements in the matters of common concern, should continue for the time being between the Dominion of India or any part thereof and the Indian States : Now therefore it is agreed between the State and the Dominion of India that:- "1. (1) Until new agreements in this behalf are made, all agreements and administrative arrangements as to matters of common concern now existing between the Crown and any Indian State shall, insofar as may be appropriate, continue as between the Dominion of India, or, as the case may be, the part thereof, and the State. (2) In particular, and without derogation from the generality of sub-clause (1) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l private properties belonging to them as distinct from State properties. The covenants for establishing Unions of States and the agreements of merger contained provisions guaranteeing to the heads of merged States or integrated States payment of privy purses. These instruments were concurred in and guaranteed by the Government of the Dominion of India. The next phase was of assimilation and consolidation of the unity achieved till then. In the case of the "Provincially merged" and "Centrally administered" States, authority for exercising the powers of administration and legislation originally derived from the Extra-Provincial, Jurisdiction Act, 1947, was later exercisable by virtue of orders issued under ss. 290A and 290B incorporated in the Government of India Act, 1935, with effect from January 15, 1949. By an order issued under S. 290A diverse steps were taken for integration of the former State into the Provinces. TO ensure an organic unity of India, the Princes were invited to accede to the Dominion, and later to integrate with India under a Constitution with a Republican form of Government. The Princes, some out of patriotism and others from motives of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered in the light of these developments. The negotiations, the assurances given by leading statesmen, and the terms of the covenants and agreements were certainly not intended to be an exercise in futility. The argument that the parties to the instruments were entering into solemn undertakings intending the arrangements to be temporary, and liable to be set at naught by the unilateral act of the Union of India, must be rejected. In form Art. 366(22) is a definition clause : It however in- vests the President with authority to recognize a person as a Ruler. Granting that under Art. 366(22) the President may withdraw the recognition of a person as a Ruler, the power to nullify important provisions of the Constitution does not flow from that clause. The plea raised by the Attorney-General that recognition of Rulership was a "gift of the President" or was "in the gift of the President" is not borne out by the position of and the nature of the powers and functions of the President under our constitutional scheme. President is made by the Constitution repository of the power to recognise the Rulers. That power may be, exercised consistently with and in aid of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng succession to the gaddi, is a question which need not be decided. But unquestionably the President is not invested with authority to recognize a stranger as successor to the gaddi, or not to recognise any person at all as a successor if he so chooses. The power of the President is plainly coupled with a duty; a duty to maintain the constitutional institution, the constitutional provisions, the constitutional scheme, and the sanctity of solemn agreements entered into by the predecessor of the Union Government which are accepted, recognised and incorporated in the Constitution. An order merely "de-recognising" a Ruler without providing for continuation of the institution of Rulership which is an integral part of the constitutional scheme is, therefore, plainly illegal. Clause (22) of Art. 366 is intended to invest the President with authority to recognise Rulers : see Kunvar Shri Vir Rajendra Singh v. Union of India([1970] 2 S.C.R. 631). The clause incorporates the history of momentous events which took place in India between 1947 and 1949 leaving a lasting impression upon our national and constitutional structure. Articles 291, 362 and Part VII of the Constitution were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was put forward to the Rulers, an assurance was given to them that they would retain the status quo except for accession on these subjects. It had been made clear to them that there was no intention either to encroach on the internal autonomy or the sovereignty of the States or to fetter their discretion in respect of their acceptance of the new Constitution of India. These commitments had to be borne in mind when the States Ministry approached the Rulers for the integration of their States. There was nothing to compel or induce the Rulers to merge the identity of their States. Any use of force would have not only been against our professed principles but would have also caused serious repercussions. The minimum which we could offer to them as quid pro quo for parting with their ruling powers was to guarantee to them privy purses and certain privileges on a reasonable and defined basis. The privy purse settlements are therefore in the nature of consideration for the surrender by the Rulers of all their ruling powers and also for the dissolution of the States as separate units "The Rulers have now discharged their part of the obligations by transferring all ruling powers and b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duled Tribes are specially defined for the purposes of the Constitution by Arts. 366(24) and 366(25). If power to declare certain classes of citizens as belonging to Scheduled Castes and Scheduled Tribes includes power to withdraw declaration without substituting a fresh declaration, the President will be destroying the constitutional scheme. The power to specify may carry with it the, power to withdraw specification, but it is coupled with,, a duty to specify in a manner which makes the constitutional provisions operative. Article 366(21) before it was deleted by the Constitution (Seventh Amendment) Act, 1956, defined "Rajpramukh" as mean- ing :- (a)in relation to the State of Hyderabad, the person who for the time being is recognised by the President as the Nizam of Hyderabad; (b)in relation to the State of Jammu and Kashmir, or the State of Mysore, the person who for the time being is recognized by the President as the Maharaja of that State; and (c)in relation to any other State specified in Part B of the First Schedule, the person who for the time being is recognised by the President as the Rajpramukh of that State, and includes in relation to any of the said Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and all moneys received in repayment of loans shall form the Consolidated Fund of India. By Art. 112(2) the President is required in respect of every financial year to cause to laid before the Houses of Parliament the annual financial state- ment of the estimated receipts and expenditure of the Government of India showing separately-(a) sums required to meet expenditure charged upon the Consolidated Fund of India; and (b) sums required to meet other expenditure proposed to be made from the Consolidated Fund of India. Clause. (3) of Art. 112 categorizes heads of expenditure charged on the Consolidated Fund of India. So much of the estimates as relate to expenditure charged upon the Consolidated Fund are by Art. 113(1) open to discussion in, but not to be submitted to the vote of the Houses of Parliament. After demands in respect of sums required to meet other expenditure have been made and assented to by the House of the People, a Bill is introduced to provide for appropriation out of the Consolidated Fund of India of all moneys required to meet the expenditure charged on the Consolidated Fund of India and the grants : Art. 114(1). No amendment may be proposed in either House to v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of different heads of expenditure charged on the Consolidated Fund : s. 1. Consolidated Funds Act, 1816; s. I The House of Commons (Speaker) Act, 1932, ss. 103, 104 & 105 of the British North America Act, 1867; ss. 117, 119 Constitution of the Union of South Africa, 1909; ss. 81 & 82 of the Australian Constitution 1900. Our Constitution does not recognize any sequence of priorities. But that does not alter the fundamental character of a charge that it specifies a fund out of which satisfaction of the expenditure charged must be made, and the prescribed expenditure shall have priority in payment to the person for whose benefit the expenditure is charged on the Fund. The constitutional obligation to proceed in the manner set out in Arts. 112, 113 & 114 imposed upon the President and the Parliament implies a right in the person or persons in respect of whom the expenditure is to be incurred. That view is supported by other provisions in the Constitution. The expression "shall be charged on and paid out of the Consolidated Fund" is used in Arts. 290, 290A and 291. Articles 290 and 291 do not expressly designate the payee : Art. 290A designates the payee. Article 273 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect. Article 291 does not merely incorporate, recognition of the obligation to pay the privy purse under covenants incurred by the Government of the Dominion of India : it gives rise to a liability dehors the covenants. Under the covenants and agreements the obligation to pay the privy purse was undertaken in the case of all Princes (bar the the heads of the States of Bhopal, Hyderabad and Mysore) to be made out of the revenues of their respective States. The Government of India concurred in and guaranteed payment of the amount of the privy purse under the terms of the agreements constituting the Unions. By the States Merger (Governors' Provinces) Order, 1949, this liability was imposed upon the Provinces when the States merged with those Provinces. In the case of a Union of States the liability to pay the privy purse to a head of State lay upon the Union of States to be discharged out of the revenues of the State. In the case of Centrally merged States the Dominion Government had to pay the privy purse out of the revenues of the State. Even after the integration of States, the obligations under the covenants were to be met out of the revenues of the respective States. The co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d against the East India Company, if the Government of India Act, 1858, had not been passed. There is no such reservation in Art. 291, or in Art. 294(1) (b) and 295(1)(b) of the Constitution. The cases of Doss (supra) and Salaman (supra) have therefore no application. The judgment of this Court in Union of India & Ors. v. Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd. & An- other(1964] 7 R.C.R. 892) has also no bearing on the character of the obligation arising by virtue of Art. 291. In that case a company which had entered into an agreement with the State of Gwalior in 1947, whereby the State of Gwalior granted exemption from liability to taxation of certain industries started in the State, claimed to enforce that right against the Union of India after integration of the State. This Court held that by virtue of the agreement the Central Legislature was not deprived of its legislative power to impose taxes, and on that account after the extension of the Income-tax Act, 1922, the exemption granted under the agree- ment of 1947 must fall and that the Company was entitled only to such concessions as may be provided by the State law applicable thereto after the integration. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son recognised before such commencement by His Majesty or the Government of the Dominion of India as the Ruler of any Indian State." Exclusion of the jurisdiction of the Courts is emphasized by the non-obstante clause with which the Article commences. Notwithstanding the investment of jurisdiction upon this Court by Art. 32, notwithstanding the jurisdiction conferred upon the High Courts by Art. 226, and notwithstanding the competence of all Civil Courts to decide disputes in respect of the obligations of the Union, it is declared that the Courts have no jurisdiction in respect of the two classes of disputes. The exception carved out of the exclusion in respect of the jurisdiction conferred upon this Court by Art. 143 is not a real exception for the jurisdiction of this Court under Art. 143 is merely advisory. The non- obstante clause however does not enlarge the field of exclusion of judicial authority. The Attorney-General urged that the jurisdiction of the Courts to enforce rights and obligations arising out of the covenants entered into by the Rulers to which the Government of the Dominion or the predecessor Governments were par- ties, was excluded, because the rights an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd extinction of paramountcy of the British power the Dominion Government of Indian did not and could not exercise any paramountcy over the States. In clause 3 of the Standstill Agreement it was expressly recited that "Nothing in the agreement includes the exercise of any paramouncy functions". The relations between the States and the Dominion Government were strictly governed by the instruments executed from time to time. Subject to the power conferred in respect of certain matters of common interest to legislate and exercise executive authority, the Princes had sovereignty within their territories. With the advent of the Constitution the States ceased to exist, and the Princes and Chiefs who were recognized as Rulers were left with no sovereign authority in them. It is difficult to conceive of the government of a democratic Republic exercising against its citizens "paramountcy" claimed to be inherited from an Imperial Power. The power and authority which the Union may exercise against its citizens and even aliens spring from and are strictly circumscribed by the Constitution. The fundamentals on which paramountcy rested-i.e. the compulsion of geography and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution for determining a legal dispute is the Court which is by training and experience, assisted by properly qualified advocates, fitted to perform that task. A provision which purports to exclude the jurisdiction of the Courts in certain matters and to deprive the aggrieved party of the normal remedy will be strictly construed, for it is a principle not to be whittled down that an aggrieved party will not, unless the jurisdiction of the Courts is by clear enactment or necessary implication barred, be denied recourse to the Courts for determination of his rights. The Court will interpret a statute as far as possible, agreeably to justice and reason and that in case of two or more interpretations, one which is more reasonable and just will be adopted, for there is always a presumption against the law maker intending injustice and unreason. The Court will avoid imputing_to the Legislature an intention to enact a provision which flouts notions of justice and norms of fairplay, unless a contrary intention is manifest from words plain and unambiguous. A provision in a statute will not be construed to defeat its manifest purpose and general values which animate its,, structure. In a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts in respect of rights or obligations, however indirect or tenuous the connection between the constitutional provision and the covenant may be. Jurisdiction to try a proceeding is barred under the first limb of Art. 363 if the dispute arises out of the provision of a covenant : it is barred under the second limb of Art. 363 if the Court holds that the dispute is with respect to a right arising out of a provision of the Constitution relating to a covenant. A dispute that an order of an executive body is unauthorised, or a legislative measure is ultra vires, is not one arising out of any covenant under the firm limb of Art. 363, merely because the order or the measure violates the rights of the citizen which, but for the act or measure, were not in question. The dispute in such a case relates to the validity of the act or the vires of the measure. Exclusion of the Court's jurisdiction by the terms of the relevant words in the second limb lies in a narrow field. If the constitutional provision relating to a covenant is the source of the right claimed to accrue, or liability claimed to arise, then clearly under the second limb the jurisdiction of the Court to entertain a disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a Ruler. Because of that reference the provision enacted with the object of conferring authority upon the President to recognize a Ruler, will not be deemed one relating to the covenant or agreement. The Attorney-General urged that this Court has decided that the Courts have no jurisdiction to determine whether the order of the President under Art. 366(22) is valid, and that the Court will not be justified in unsettling the law. The decisions relied upon are: Nawab Usman Ali Khan v. Sgarmal (supra) and Kunvar Shri Vir Rajendra Singh v. Union of India (supra). In our judgment, in neither of these cases the question about the bar to the Court's jurisdiction by virtue of Art. 363 was directly in issue. In Nawab Usman Ali Khan's case (supra) this Court upheld the claim that the privy purse payable to the Ruler of Jaora was exempt from attachment under s. 60 (1) (g) of the Code of Civil Procedure. The Court in that case considered the nature of the privy purse and held that it was a "political pension" within the meaning of s. 60(1) (g) of the Code of Civil Procedure. Bachawat, J., speaking for the Court, after setting out the history of integration and absorption o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er by the President abandoned at the hearing of his petition his claim to the privy purse payable to the Ruler of Dholpur, and pressed his claim by succession under the Hindu Law to the private property of the former Ruler. The Court was not called upon to decide and did not decide that Art. 366(22) was a provision relating to a covenant within the meaning of Art. 363. It is difficult to regard a word, a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition of the law on a question when the question did not ,even fall to be answered in that judgment. In the view we have expressed, the argument raised by Mr. Palkhivala that even if cl. (22) of Art. 366 is a provision relating to the covenants, the jurisdiction of this Court under Art. 32 to grant relief against an invalid exercise of power withdrawing recognition of the Rulers is not barred, needs no consideration. The source of the right to receive the privy purse is for reasons already stated the constitutional mandate : it is not in the covenant. Reference to the covenant in Art. 291 merely identifies the sum payable as privy purse : it does not make Art. 291 a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejudice of citizens. The powers of the President arise from and are defined by the Constitution. Validity of the exercise of those powers is always amenable to the jurisdiction of the Courts, unless the jurisdiction is by precise enactment excluded. Power of this Court under Art. 32, or of the High Courts under Art. 226, cannot be bypassed under a claim that the President has exercised political power. On the view we have expressed, it is unnecessary to express any opinion on the plea that the order was made for a collateral purpose. A writ will therefore issue declaring that the order made by the President on September 6, 1970 "do-recognising" the Rulers is illegal and on that account inoperative, and the petitioner will be entitled to all his preexisting rights and privileges including the right to the privy purse, as if the order had not been made. The petitioner will get his costs of the petition. Writ petitions Nos. 377 to 383 of 1970 raise the identical question which is raised in the main petition. For reasons set out in the principal petition a similar writ will issue. Each petitioner will get his costs of the petition. One hearing fee in those, petitions in wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution in its present form deals with the rights and privileges of Rulers of Indian States other than the privy purse and reads : "In the exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in article 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State." The only article in the Constitution which mentions the recognition of a person as a Ruler is Art. 366 which is a key to the meaning of various words and expressions used throughout the Constitution. Clause 22 of the article provides "In this Constitution unless the context otherwise, requires, the following expressions have the meaning hereby respectively assigned to them, that is to say- (22)"Ruler" in relation to an Indian State means the Prince, Chief or other person by whom any such covenant or agreement as is referred to in clause (1) of article 291 was entered into and who for the time being is recognised by the President as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia in order to appreciate the setting in which these persons or their ancestors who were formerly Rulers of territories in India wore brought within the fold of the Constitution. Though not sovereign within the meaning of that expression in International Law these former Rulers had certain attributes of sovereignty during the days preceding the independence of India. As is well known to all students of history the achievement of setting up a British Empire in India was "in its early stages at any rate, brought about by the agents of the East India Company in India." The Company entered into treaties with Indian States in the early stages aiming at no more than securing for the Company a privileged position in trade against its rivals. For the first time the Parliament of England asserted its authority and control over the East India Company's activities both in. India and in England by the Regulating Act of 1773, under which the Governor of Bengal became the Governor-General in Council with a certain amount of control over the Presidencies of Bombay and Madras. The Marquis of Wellesley as the Governor-General felt convinced when he came to India in 1798 and saw the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an. Whatever may have been the cause which led to the Mutiny of the year 1857 it was realised by the British people that the Indian States could play a vital role as one of the bulwarks of British rule. An Act of 1858 intituled "An Act for the Better Government of India" provided by the 67th section that "all treaties made by the Company shall be binding upon Her Majesty". In her proclamation Queen Victoria made it clear that the Government would respect the rights, dignity and honour of Native Princes. The policy of annexation vigorously pursued by Dalhousie gave way to the perpetuation of the States as separate entities. Lord anning carried this new policy to its next logical step by recommending that the integrity of the States should be preserved by perpetuating the rule of the Princes whose power to adopt heirs should be recognised. The Secretary of State for India agreed to this recommendation and sanads were granted to the Ruler under which in the event of the failure of the natural heirs, they were authorised to adopt their successors according to their law and custom. These sands were intended to remove mistrust and suspicion and knit the Native Soverei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter addressed to the Chief Commissioner of the Central Provinces in which it was stated that succession to a native State is invalid until it receives in some form the sanction of the British authority. In the view of the Secretary of State expressed in 1891 it was admittedly the right and duty of Government to settle successions in the protected States in India. This right it was claimed flowed essentially from the-position of the British as the Supreme power responsible for maintaining law and order throughout the country. That power alone had the necessary sanction to enforce decisions regarding disputed successions. The Ruler thus did not inhert his gaddi as of right but as a gift from the paramount power. A definite pattern of the Government of India's relationship with the States had been developed b the time the first world War broke out in 1914. The Rulers rallied to fight for the Empire, and the organisation of the war effort involved closer coordination of administrative activity in the States as well as in the Provinces. Throughout the country the tide of national aspirations was rising fast. Although Britain claimed to be fighting a war to defend freedom and dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oy in 1926 felt that the political situation in the country demanded some gesture on the part of Britain. In March 1927 an announcement was made for appointing a statutory Commission to enquire into the working of the Government of India Act 1919 and to make recommendations regarding further constitutional advancement. At or about this time the Rulers of the Indian States also demanded an impartial enquiry into the whole relationship between themselves and the paramount power. The Secretary of State appointed a Committee of three members headed by Sir Harcort Butler to enquire into the relationship between the States and the paramount power and to suggest means for the more satisfactory adjustment of the existing economic relations, between the States and the British India. On behalf of the States it was contended before the Committee that all original sovereign powers except those which had been transferred with their consent to the Crown were still possessed by them and that such transfers could be effected only by the consent of the States and that the paramountcy of the British Crown was limited to certain matters-those relating to foreign affairs and external and internal sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Conference. There was a series of these conferences which debated on many and various points including Federation of the States with the Provinces of British India. Then came the Government of India Act 1935 which provided for a constitutional relationship between the Indian States and British India on a federal basis. A special feature of the scheme 'Was that whereas in the case of the provinces accession to the Federation was to be automatic in the case of the states it was to be voluntary. A State was to be considered to have acceded when its Ruler executed an Instrument of Accession and after it was accepted by His Majesty the King of England. The Government of India Act 1935 other than the Part relating to Federation, came into force on the 1st April 1937. From that date the functions of the Crown in the relations with the States were entrusted to the Crown Representative; those functions included negotiations with the Rulers after accession to the Federation: The Federation however never took shape,. An important announcement in the Constitutional set up of India which came after the Second World War had broken out was the Draft Declaration known as Cripp's Plan. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Conference held by him Lord Mountbatten gave it out that the date of transfer of power would be about 15th August, 1947. The Indian Independence Act enacted for the purpose of giving effect to the plan envisaged as above, received the Royal Assent on 18th July 1947. It provided for the setting up of two independent Dominions as and from the 15th August 1947. Section 2 of the Act defined what the territories of the two Dominions would be S. 6 provided that the Legislature of each of the new Dominions would have power to make laws for that Dominion. Under s. 7(1)(b) the suzerainty of His Majesty over the Indian States would lapse and with it all treaties and agreements in force at the date of the passing of the Act between His Majesty and the Rulers of Indian States, all functions exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty existing at that date towards Indian States or the Rulers thereof. Under cl. (c) any treaties or agreements in force at the date of passing of this Act between His Majesty and any person having authority in the tribal areas were also to lapse. Section 9 empowered the Governor-General, to promulgate orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere in no position to meet the demand. for equating the position of their people with that of their countrymen in the Provinces. Without doubt the smaller State units could not have continued in modern conditions as separate entities; integration provided the only approach to the problem. The integration of States did not however follow a uniform pattern. Merger of States in the Provinces geographically continuous to them was one form of integration; the second was conversion of States into Centrally administered areas; and the third form was the creation of new viable units known as Unions of States. Each of these forms was adopted according to size, geo graphy and other factors relating to each State or group of States. The problem of integration was first faced in Orissa where the States formed scattered bits of territory with no geographical contiguity. After long discussions with the Rulers of the States and the Minister of the State Department it was eventually decided to integrate the small States with the adjoining Provinces. Agreements were signed by the Rulers of these States in December 1947 and on subsequent dates providing for cession by them to the Dominion of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Most of the historical account is taken verbatim from V. P. Menon's "Story of Integration of Indian States" and the White Paper on Indian Constitution-both of which were freely referred to by counsel appearing in the case. In the above setting I now propose to examine the implications of the important documents to which the Ruler of Gwalior became a party. An Instrument of Accession was signed by the Ruler of Gwalior on the 15th August, 1947 in the exercise of his sovereignty in and over his State containing inter-alia the following material terms:- "I declare that I accede to the Dominion of India. with the intent that the Governor-General of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purpose of the Dominion shall, by virtue of this instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion exercise in relation to the State...... such functions as may be vested in them by of under the Government of India Act, 1935. Clause 31 accept the matters specified in the Schedule hereto as the matters with respect to which the Dominion Legislature may make laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or payment of a sum of ₹ 2,50,000 to the Rajpramukh from the revenues of the United State as con- solidated allowance. Under Art. V there was to be a Council of Ministers to aid and advise the Rajpramukh in the exercise of his functions. Under Art. VI the Rulers of each Covenanting State agreed as soon as possible and not later than the 1st July 1948 to make over the administration of his State to the Rajpramukh whereupon all rights, authority and jurisdiction belonging to the Ruler which pertained to or were incidental to the Government of the Covenanting State were to vest in the United State and all the assets and liabilities of the Covenanting State were to be the assets and liabilities of the United State. Under Art. VIII the Rajpramukh was to execute on behalf of the United State, as soon as practicable and in any event not later than 15th June 1948 an Instrument of Accession in accordance with the provisions of s. 6 of the Government of India Act, 1935 and he was to accept as matters with respect to which the Dominion Legislature might make laws for the United State all the matters mentioned in List I and List III of the Seventh Schedule to the said Act, except the ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accordance with the opinion given, by that High Court. The document ends with the following paragraph "The Government of India hereby concur in the above Covenant and guarantee all its provisions. In confirmation whereof Mr. V. P. Menon, Secretary to the Government of India in the Ministry of States, appends his signature on behalf and with the authority of the Government of India." On July 19, 1948 'the Ruler of Gwalior who had then become the Rajpramukh of the United State of Madhya Bharat executed a revised Instrument of Accession reciting the covenant of April 1948 referring in particular to Art. VIII of the same and declaring. that he as Rajpramukh was acceding to the Dominion of India with intent that the Governor-General of India, the Dominion Legislature the Federal Court and any other Dominion authority established for the purpose of the Dominion would by virtue of the instrument of Accession but subject always to the terms thereof and for the purposes only of the Dominion exercise in relation to the United State such functions as may be vested in them or under the Government of India Act, 1935. By cl. (2) he assumed the obligation of ensuring that due ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto force at once and the remaining provisions of the Constitution were to come into force on the 26th day of January 1950 referred to in the Constitution at the commencement of the Constitution. By Art. 395 the Indian Independence Act 1947 and the Government of India Act 1935 together with all enactments amending or supplementing the latter were repealed. The above gives a fairly complete picture of the disappearance of the former Indian States which formed the combination of the United State of Madhya Bharat with the commencement of the Constitution of India as also the rights and privileges of the Rulers save as expressly provided otherwise in the Constitution itself, or the covenants agreements 'etc to the extent necessary. The above pattern did not however apply to all the Indian States. A number of small States of Orissa executed Merger agreements which were confirmed on behalf and with the authority of the Governor-General by the Secretary. to the Ministry of States. These agreements were entered into in December 1947. By Art. I of the agreement the Raja of the State ceded to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the differences. There were separate agreements with the Nizam of Hyderabad regarding the privy purse, private property and rights and privileges entered into on the 25th January 1950. Under Art. I of the agreement with the Nizam the said Ruler was to be entitled to receive annually for his privy purse a sum of ₹ 50 lakhs free of all taxes. But with regard to his successors provision was to be made subsequently by the Government of India. Under Art. IV the Government of India guaranteed the succession according to law and custom to the gaddi of the State. A very similar agreement was entered into with the Maharaja of Mysore on the 23rd 1 January 1950. The then Maharaja was to receive ₹ 26 lakhs free of all taxes as and by way of privy purse per annum but provision was to be made subsequently by the Government of India with regard to his successor. For an other instance of integration through Merger Agree- ment I may refer to the Kutch Merger Agreement dated 4th May, 1948 between the Governor-General of India and the, Maharao of Kutch. The preamble shows that the agreement was being entered into in the best interests of the State of Kutch as well as of the the Dominion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the heading of that Schedule and, accordingly, any reference to an Acceding State, in the Government of India Act, 1935, or in any Act or Ordinance made on or after the appointed day was to be construed as not including a reference to any of the merged States, and any reference in any such Act or Ordinance as aforesaid to Provinces specified in that Schedule. Under Cl. 4 all the law in force in a.,. merged State or in any part thereof immediately before the appointed day including orders made under section 3 or section 4 of the Extra-Provincial- Jurisdiction Act, 1947 was to continue in force until repealed, modified or amended by a competent Legislature or other competent authority Under Cl. 5 all property wherever situate which, immediately before the appointed day was vested in the Dominion Government for purposes of the governance of a merged State was as from that date to vest in the Government of the absorbing Province unless the purposes for which the property was held immediately before the appointed daywere central purposes. Another Order known as the Stages Merger (Chief Commis- sioners' Provinces) Order, 1949 was promulgated on the 29th July 1949. The State of Kutc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ographical, political and economic unification of India, an ideal which for centuries remained a distant dream and which appeared as remote and as difficult of attainment as ever even after the advent of Indian independence . . . Human memory is proverbially short. Meeting in October 1949, we are apt to forget the magnitude of the problem. which confronted us in August 1947 . . . . the so-called lapse of paramountcy was a part of the plan announced on June 3, 1947 which was accepted by the Congress. We agreed to this arrangement in the same manner as we agreed to the partition of India. We accepted it because we had no option to act otherwise. While there was recognition in the various announcements of the British Government of the fundamental fact that each State should link up its future with that Dominion with which it was geographically cotinguous, the Indian Independence Act released the States from all their obligations to the British Crown.......... They (the British Crown) even conceded that theoretically the States were free to link their future with whichever Dominion they liked, although, in saying so, they referred to certain geographical compulsions which could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbly which bear upon the interpretation of Art. '363. Before the Constitution finally took shape in the draft, this article was numbered as 302-AA and article 143 was numbered as 119 Shri T. T. Krishnamachari who moved for the insertion of Art. 302-AA said in the course of his speech : " .....it is self explanatory. The idea is to bar the jurisdiction of the courts including the Supreme Court in regard to adjudicating in respect of any disputes that might arise out of any treaty, agreement, covenant, engagement, sanad or other similar instruments that might have been entered into by the Government of the Dominion of India or by any predecessor Government. " Questioned by a member as to who would decide, T. T. Krishnamachari replied The idea is that the court shall not decide in this particular matter. It is subject only to the provisions of Art. 119 by which the President may refer the matter to the Supreme Court and ask for its opinion and the Supreme Court would be bound to communicate its opinion to the President on any matter so referred by him. The House will also remember that there are a few articles in the Constitution, specifically 302-A (the present Art. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment), Bill 1970 passed by the Lok Sabha on 2nd September 1970. It was however rejected by the Rajya Sabha on the 5th September, 1970. The same night the President signed an instrument withdrawing recognition of all the Rulers and orders were issued for and on his behalf to each and every Ruler in the country. According to The petition the order of the 6th September violated Articles. 14, 19 (1)(f), 21 (as per amendment allowed) and 31 (1 ) and. (2) of the Constitution. The order was dubbed as unconstitutional, ultra vires, void and inoperative, arbitrary, malafide and a fraud on the Constitution on various grounds formulated in paragraph 20, the notable ones being as follows :- (1) Art. 291 embodied the Constitutional acceptance and re- cognition of the guarantees or assurances regarding tax-tree privy purses., The privy purse guaranteed by the Government under the Merger agreements or Covenants were further assured and guaranteed by the Constitution and charged on the Consolidated Fund of India. Arts. 291 and 362 themselves created new and independent rights. The pledge to pay privy purses and the guarantee regarding privileges etc. are inseverable from these accessions and merge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without authority of law contravenes Art. 31(1) as the petitioner was to be expropriated of his moneys and his right to receive money periodically by way of privy without any compensation. (vi) The Privy purse was in substance and in reality compen- sation for the transfer by Rulers of inter alia their properties. (vii) There was a duty cast upon the Government of India to respect and implement the provisions of the Merger agreements and the Covenants. The petitioner's further contentions were that the order left the Merger agreements and covenants untouched and did not in any way abrogate or affect any of the assurances, guarantees and obligations under the agreements and covenants. According to the petition Art. 363 covered cases of a dispute arising out of a settlement with a Ruler or a dispute in respect of a right or obligation founded on a provision of the Constitution relating to such a settlement but it did not cover the case of policy embodied in legislative or administrative action to abolish altogether the institution of Rulership and its rights and privileges and of privy purses. The prayers formulated in the petition were as follows (a) A writ, direction or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivy purse or any of the said privileges and as such neither the gaddi nor the privy purse or any of the said privileges is property within the meaning of Art. 19(1)(f) or Art. 31(1) or Art. 31(2) of the Constitution. (l) If the State policy changed and the State decided not to pay such political" pension in future, a dispute arising from such decision was not justiciable in a municipal court. (m) Rulership or the succession thereto, the privy purse and the said privileges were inter alia the subject matter of an agreement and an agreement could not confer on the petitioner any fundamental right under the Constitution. (n) Art. 291 of the Constitution did not create any legal right in a person. It only laid down the source and method of payment of the privy purse. The article in laying down that the privy purse shall be charged on and paid out of the Consolidated Fund of India meant no more than that these sums would be sums within the meaning of Arts. 112(2)(a) and 113(1) of the Constitution and would not be submitted to the vote of Parliament. And secondly that such sums would be exempt from all taxes on income. Even if the article created a legal right in a person recogni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 363 barred the enforcement of any such alleged right. (f) The Rulers entered into the covenants and Merger agree- ments by reason of political compulsion and in their own interests and not on the faith of any undertaking or guarantee on the part of the then Dominion of India. Neither the petitioner nor any erstwhile Ruler acted upon any assurance or guarantee on the part of the Government of India. On the other hand a fiduciary duty was cast upon the respondent Government not to continue Feudal institutions and anachronistic systems against the interests of the people. (g) The petitioner has no fundamental right as claimed and Art. 363 barred adjudication by a court of law with respect to the rights claimed. The crucial question in the petition is whether the petitioner is entitled to a declaration that the order withdrawing his recognition as a Ruler is beyond the scope of any executive action of the President. The only provision in the Constitution in which the recognition of a person as a Ruler appears is Art. 366(22). The article being a Code to the meaning of the words used in the Con- stitution we have to see exactly what it proposes to do and what it achieves. Unless a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he clause. If there were no covenants or agreements to guide him or bind him, the President could probably recognise and derecognise or withdraw recognition at his will and pleasure. Clearly however the grant of such a power was not in the minds of the Constitution-makers. At the time when they entered into covenants and agreements, a solemn assurance or guarantee was given by the Dominion of India that succession to the gaddi of each Ruler would be according to law and custom of the State. It would appear that invariably the rule of lineal male primogeniture coupled with the custom of adopting a son prevailed in the case of Hindu Rulers who composed of the bulk of the body. When on the eve of the Constitution being finally adopted the Rulers with the exception of two or three accepted the same as binding upon them and their States, it must follow that they accepted and adopted the Constitution of India because they thought and were assured that the provisions in it regarding themselves and their successors were to their satisfaction and were binding in nature. They certainly never imagined that they would be the play-things of the executive Government of the Union of India to be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were investigated into with the help of one of the highest judicial officers of the land and reported on to the President The President thereupon withdrew recognition from Shri Tejsinghji Bahadur and recognised Shri Abhaisinghji as the Ruler of Sirohi. To my mind Art. 360'(22) read with the rules of succession in the Merger agreements and the covenants was given full effect. Recognition was given to the person lawfully entitled to be declared the successor to the gaddi and the same was with- drawn from a person who was held not entitled to it. The Act was certainly executive but in nature it was based on a judicial scrutiny and not on any political consideration or in an arbitrary fashion. Another instance of applying the law and custom of succession is afforded by the case of Dholpur which was enquired into by Shri K. N. Wanchoo, Chief Justice of the Rajasthan High Court (as he then was) forming a Committee with two Rulers. To my mind the Merger agreements and covenants did not be- come waste paper on the commencement of the Constitution to be consigned to the record room or any museum. So long as the above provisions enure in the Constitution a Ruler will have to be found f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 366(22) which requires a court to recognise such a person as a Ruler for the purposes outside the Constitution." Earlier in the judgment at page 504 it was said "The expression 'Ruler' as defined in Art. 366(22) of the Constitution applied only for interpreting the provisions of the Constitution." In my view these observations do not advance the contention of the Respondent as the Court was not there concerned with the question of power to recognise or withdraw recognition from a Ruler. The only question before the Court was whether the appellant was an ex- Ruler for the purposes of the Act., Reference may be usefully made to paragraph 241(3) at page 129 of the White Paper on Indian States under the heading "Recognition of Rulers" reading : "The Rulers of the merged and integrated States have been guaranteed succession according to law and custom. In the Covenants and some of the Agreements of Merger, provision has been made for the procedure to be observed for the, settlement of the cases of disputed succession. In the case of Rulers of States forming Unions, every question of disputed succession is to be decided by the Council of Rulers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey felt that it was in the best interests of their people and also of themselves. (c)The learned Attorney-General argued that paramountcy continued and the advent of the Constitution did not put an end to it and the debates of the Constituent Assembly with regard to Art. 302-AA (present article 363) that the disputes covered by the said article were beyond the pale of adjudication of courts of law only recognised the same. According to him the old concept of paramountcy was virtually- inherited by the Dominion of India before January 1950 by reason of the Instruments of Accession, Covenants and Merger agreements : the recognition of a Ruler which was the gift of Paramount power was not the matter of a legal right and was exercised as an act of paramountcy and retained the same character. He cited various decisions of this Court to show that covenants,and Merger agreements have always been so interpreted, e.g. Virendra Singh & others v. State of U.P.( [1955] 1 S. C.R. 4 5 at 429), Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income Tax([1959] S.C.R. 729 at 744) and a number of other cases. He argued further that a plea which was available to the Dominion of India can now be put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this court as also an appeal from a judgment of the High Court which were dealt with by a common judgment of this Court. The last Ruler of Dholpur died in 1954 leaving him surviving no direct male heir but he had left his daughter who was married to the Maharaja of Nabha. His widow adopted a grandson, viz., one of the sons of the daughter and thus arose a controversy as to who was entitled to the Rulership of Dholpur and the Government of India by notification dated December 22,. 1954 constituted a Committee, as already mentioned, to examine the contentions of various claimants and no the basis of the report of that Committee, the President recognised His Highness Maharaja Rana Shri Hemant Singh as the Ruler of Dholpur from 22nd October, 1954. The contentions put forward on behalf of the petitioner, the appellant to this Court were (1) The handing over or authorising the taking over of pri- vate properties was by executive flat and was ex facie bad as infringing Art. 19 (1) (g) and Art. 31 of the Constitution; (2) that the recognition of a Ruler even if it was an instance of exercise of political power was itself an insignia of property and therefore it could only be by authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, provided-for the act of recognition of the Rulership by the President 'as a political power." Some of the above observations undoubtedly sustain the contention of the learned Attorney-General but they must be limited to the facts of the case. The petitioner-cum- appellant before this Court did not claim any right to the gaddi. He only claimed to, be entitled to the private properties of the deceased Ruler according to law and custom of lineal primogeniture. His complaint against the notification under cl. (22) of Art. 366 was not accepted mainly because the notification made no reference to the private properties of the late Ruler. The Court held that the petitioner had not been able to establish any claim to any private property belonging to the last Ruler. There have 'however been instances where the President did not act strictly in accordance with what conceive to be his power, duty or obligation to recognise or to withdraw recognition to a Ruler. A notable instance of this occurred soon after the commencement of the Constitution when recognition was withdrawn from Sir Pratap Singh, the Ruler of Baroda and his eldest son Yuvaraj Fatehsingh was purporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the payment of privy purses and mandate of the regard to the personal rights and privileges of the Rulers, the contention of the learned Attorney-General cannot find favour in a court of law. The covenants and Merger Agreements were undoubtedly political acts entered into by High Contracting Parties and as such-they could not be en- forced in a court of law. But once the Constitution of India took the field and the Rulers became citizens of India there could be no acts of State as against such citizens living in India. The question however remains as to whether these are matters which can be adjudicated upon by the municipal courts in India. This point would fall to be considered under 'Art. 363 but before that one must refer to Art. 291 which is the prop and pillar to the claim of privy purse. This 'article places the payment of privy purse on a constitutional foundation. It expressly refers to the covenants or agreements entered into by a Ruler of an Indian State before the commencement of the Constitution and provides for the disbursement thereof by directing that the sums shall be charged on and paid out of the Consolidated 'Fund of India. In effect it means th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The second limb of Art. 363 read along with the first makes it clear that the whole object is to prevent disputes arising from covenants being raised in the garb of enforcing a right conferred by a provision of the Constitution. In the present series of cases Art. 363 does not apply since there is no dispute as to rights arising from the covenant and the constitutional provisions merely guarantee that right. (8) In any view of the matter any decision to repudiate the obligations under Art. 291 would be malafide and ultra vires. The power or jurisdiction cannot avail an authority to make an order or decision which is malafide and ultra vires because such an order or decision is a nullity and the-bar of jurisdiction under Art. 363 cannot be pleaded to protect a nullity. The submissions of the learned Attorney-General were (a) The right to privy purse which accrues under Art. 291 clearly relates to a covanant : hence Art. 363 bars any dispute in respect of such a right or recognition. The Constituent Assembly Debates go to show that this article was meant to give constitutional recognition to guarantees given by the Government of India and provided for the expenditure being charged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government of the Dominion of India were to be fully honoured and not cast away on a false morass of public opinion or buried under acts of State. No doubt the covenants or Merger agreements were acts of State but when the framers of the Constitution came to provide for the Rulers by giving them assurance of continuance of the payment of privy purse and regard to their personal rights and privileges by enshrining them in the Constitution, in my view they never contemplated that the same was to be the play-thing of the executive. It was by the incorporation of Arts. 291 and 362 that the Constitution-makers were able to get the willing consent and co-operation of the Rulers to be brought within the fold of the Constitution. As observed by Sardar Vallabhbhai Patel the settlements with the Rulers were overall settlements taking all the pros and cons of the situation into consideration the aspirations and ambitions of the people of the States, their wish and desire to get independence of the same type which their brethren in the erstwhile British India had obtained, their right and determination to have a voice in the administration of the country through their elected representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at pains to show what the effect of the expression 'charged on and paid out of the Consolidated Fund or India' meant. According to the learned Attorney-General and Mr. Mohan Kumara Mangalam who followed him, the expression "charged on" was only a form of expression used for the purpose of financial estimates and Appropriation Bills. It was meant to distinguish certain items in the Appropriation Bills from grants which were votable at the will of Parliament and the further direction for paying out thereafter did not advance matters. Ac- cording to Mr. Palkhivala who referred to some of the financial provisions in the Constitution, a security was created thereby on, the Consolidated Fund, that there was something akin to a pledge of it for the payment of the privy purse giving rise to a new right.. in my view whatever the nature of their right it- is related to the covenants and as such within the fold of Art. 363. Before referring to any decisions on the point it may be useful to make an attempt to define the scope of Art. 363 as if it was a case of first impression. The article purports to over-ride all other provisions of the Constitution excepting Article 143 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the limit of the liability or obligation arising out of any constitutional provision which provision in its turn must relate to any treaty, agreement etc. Dispute means any contradiction or controversy. Whenever a person asserts or claims a right in respect of a subject matter and another person contradicts it or denies it, there is a dispute. Disputes may be many and of various kinds. it may relate to a question of fact ,or a question of law which again may be a very simple or a complicated one. A question of law may arise about the interpretation of a contract; equally it may arise, about the interpretation of the provisions of the Constitution. But whatever be the quality or the nature of the controversy it would be a dispute short of somebody trying to raise a contention which was absurd on the face of it e.g., ,that 'black means white. The right, liability or obligation in dispute must arise out of the provisions of the Constitution which has any bearing on any treaty, agreement, covenant, engagement etc. The expression " relating to" means inter alia "stand in some relation, to have bearing or concern, to pertain, to refer, to bring into association with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 291 must be held to be an, article of the Constitution relating to covenants or Merger agreements and any dispute as to payment of privy purse would come, under the bar of Article 363. Article 363 has come up for consideration before this Court in a number of cases and reference has been made to this article quite frequently in several decision. In one of the earliest decisions of this Court in State of Seraikella & others v. Union of India & another(1951 S.C.R. 174) the Court had to consider whether a suit filed on the 15th January 1950 (before the commencement of the Constitution) under the Original, Jurisdiction of the Federal Court for a declaration that the various orders under which the State of Seraikella came to be administered as a part of Bihar and the laws under which those orders were made were ultra vires and the Province of Bihar had no authority to carry on the administration of the State, was dismissed by a majority of the Judges of this Court as being barred by Art. 363. Among the contentions urged there was one that the suit which was filed before the 26th January 1950, stood transferred to Supreme Court under Art. 372(2) of the Constitution and that the Bar of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch protected from the execution proceedings. Relying upon the decisions of the Judicial Committee in Bishambar Nath v. Nawab Imdad Ali Khan(17 I.A. 181) and Nawab Bahadur of Murshidabad v. Karnani Industrial Bank Ltd.( 58 I.A. 215) the Court came to the conclusion that privy purses were political pensions. That Court also referred to Arts. 291--and 363 of the Constitution and ob- served that "the covenant entered into by the Rulers of Madhya Bharat State was a treaty entered into by the Rulers of independent States by which they gave up their sovereignty over. their respective territories and vested it in the new United State of Madhya Bharat. The covenant was an act of State, and any violation of its terms cannot form the subject of any action in any municipal courts. The guarantee given by the Government of India was in the nature of I treaty obligation contracted with the sovereign Rulers of Indian States and cannot be enforced by action in municipal courts. Its sanction is political and not legal. On the coming into force of the Constitution of India, the guarantee for payment of periodical sums as privy purse is continued by Art. 291 of the Constitution, but its essentia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.R. 553.), Sadanandan v. Kerala State([1966] 3 S.C.R. 590), Jaichand Lal v. West Bengal([1966] Supp. S.C.R. 464), Raja Anand v. U.P. State([1967] 1 S.C.R. 373), Dhulabhai v. Madhya Pradesh([1968] 3 S.C.R. 662). He also relied on several English decisions, namely, The General Assembly of Free Chaurch of Scotland v. Lord Over Town([1904] A.C. 515), R. v. Bryant([1956] 1 A.E.R. 341) and Anismiminic Ltd. v. Foreign Compensation Commission and another ([1969] 1 A.E.R. 208) . The first case S. Pratap Singh v. The State of Punjab([1964] 4 S.C.R. 773) was one where the appellant who was a civil surgeon in the employment of the State of Punjab challenged the legality of the orders of suspension, revocation of leave, retention in service after the date of superannuation and institution of the departmental enquiry against him inter alia on the ground that the same were mala fide passed at the instance of the Chief Minister who was personally hostile to him in order to wreak vengeance on him. The power exercised the Government in that case rested on service rules the proper application of which is always subject to scrutiny by courts of law. Examining the content of the power vested in the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt from the purpose. Vast powers in the public interest are granted but under strict conditions. If a person, under colour of exercising the statutory power, acts from some improper or ulterior motive, he acts in bad faith. The action of the authority is capable of being viewed in two ways. Where power is misused but there is good faith the act is only ultra vires but where the misuse of power is in 'bad faith there is added to the ultra vires character of the act, another vitiating circumstance. Courts have always acted to restrain a misuse of statutory power and the more readily when improper motives underlie The provision of law which came up for consideration there was the Defence of India Rules and his Lordship laid down that powers given by such rules could be used only within the limits prescribed. Lala Ram Swarup v. Shikar Chand([1966] 2 S.C.R. 553) was a case in which the appellants complained of refusal of permission to sue their tenants by the District Magistrate under s. 3(1) of the U.P. Act 3 of 1947. The said section provided that "Subject to any order passed under sub-section (3) no suit shall, without the permission of' the District Magistrate, be filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d adopted on the basis of these decisions the dictum that "Where a liability not existing at common law is created by 'a statute which at the same time gives a special and particular remedy for enforcing it". the party must adopt the form of remedy given by the statute. It was also observed : "It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must be either by explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not beep complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." In Raleigh Investment Co. Ltd. v. Governor- General in Council(1) the bar of jurisdiction of civil courts in regard to income-tax proceedings was contained in s., 67 of the Indian Income-tax Act, 1922 providing "no suit shall be brought in 'any civil court to set aside or modify any assessment made under this Act, and no prosecution suit or other proceeding shall lie against any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided on the basis of provisions in the relevant Acts for the correction, modification and setting aside of assessments and the express bar of the jurisdiction of the civil courts. The presence of a section barring the jurisdiction was the main reason and the existence of an adequate machinery for the same relief was the supplementary reason." Referring to the dicta in Circo's Coffee Co. v. State of Mysore([1968] 3 S.C.R. 662) and C. T. Santhulnathan Chettiar v. Madras(s) the learned Chief Justice observed the question of validity of the taxing laws is always open to the civil courts for it cannot be decided on 20th July, the implication of any provision to make such a decision final or that even void or invalid laws must be enforced without any remedy." The result of the enquiry into the views expressed by this Court in ,a large number of cases was summed up at pages 682-683 in seven propositions. It is not necessary to set out the propositions as they all relate to exclusion of jurisdiction of the civil court by express provisions of law or clear implications therefrom. But a constitutional provision of the kind of Art. 363 tran- scends this kind of consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urts as regards disputes covered by it Art. 363 gave express power to the President to have the opinion of this Court to guide himself by and when disputes of such public importance were agitating the minds 'of members of Parliament and of the Cabinet it was not only his right but his duty to consult this Court. I do not think it necessary to express any opinion on the rights or privileges covered by Art. 362 of the Constitution because prima facie they are relatable to the guarantees or assurances given under the covenants or agreements referred to in Art. 291. How much regard Parliament or Legislature of States are to pay to such guarantees or assurances is for the appropriate Legislatures to consider. I may only add that the Constitution makers could not have contemplated exemption from the impositions such as those under the Wealth Tax Act and the Gift Tax Act inasmuch as such taxing provisions probably were not contemplated at the time. The Government of India in its graciousness saw fit to exempt the Rulers from the operation of these and many other statutes which are still on the statute book. The occasion for considering such statutes has not arisen yet and they may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the facts and pleas put forward in Writ Petition No. 376 of 1970. Therein the petitioner's case is as follows His father was the Ruler of Gwalior prior to August 15, 1947. He signed the Instrument of Accession on August 15, 1947. The same was accepted by the Governor General of India on August' 16, 1947. Under the Instrument of Accession, he made over to the Dominion of India. three subjects viz. Defence, External Affairs and Communications. On April 24, 1948, he signed a Covenant with several other Rulers as a result of which the State of Madhya Bharat came to be formed on June 15, 1948. Thereafter Madhya Bharat merged with the Union of India. After the Constitution of India came into force, the President recognised the father of the petitioner under Art. 366(22) of the Constitution as the Ruler of Gwalior. After the death of the petitioner's father, the petitioner succeeded to the Gaddi on July 16, 1961 and thereafter he was duly recognised by the President under Art. 366(22). Ever since the merger of the State with the Union of India, the petitioner's father and later on the petitioner was being paid the privy purse guaranteed under Art. 291 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned orders issued on September 6, 1970. On the strength of these orders, the Government of India asserts that all the Rulers in India had been derecognized and consequently none of them is entitled to the rights and privileges to which they were entitled as Rulers. It is contended on behalf of the petitioners that in exercise of his powers under Art. 366(22) of the Constitution, the President is not competent to abolish Rulers as a class and therefore the impugned orders are nullity. The farther contention of the petitioners is that the rights conferred on them under Arts. 291 and 362 of the Constitution as well as under various statutory provisions or rules having the force of law are fundamental rights and as such they cannot be abolished by an executive order. It is said the impugned orders contravene Axts. 19(1) (f), 21, 31 (1), 31(2), 51(3) and 73(1) of the Constitution. According to the petitioners Arts. 291 is a mandatory provision and it is not open to the Government to refuse to obey the mandate of the Constitution. The petitioners also complain that in making the impugned orders, the President not only acted outside the scope of Art. 366 (22) of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tside the 'jurisdiction of this Court firstly because they arise from political agreements between High Contracting Parties and secondly because of the bar under Art.363. It is next contended on behalf of the respondent that neither under the Covenants nor under any of the provisions of the Constitution any fundamental right was conferred on any Ruler and hence the, petition under Art. 32 is not maintainable. It is 'also urged on, behalf of the respondent that Art. 362 of the Constitution does not confer any right on the Rulers and any failure to obey the direc- tion given in that Art. does not lead to any violation of the: provision of the Constitution. From the pleadings, the following issues arise for decision (1) What is the scope of Cl. (22) of Art.366 ? Does it confer on the President power to abolish Rulership ? Are the impugned orders invalid for any of the reasons mentioned in the Writ Petitions ? (2) Does Art. 291 impose any mandatory duty on the Government and confers corresponding rights on the Rulers ? (3) What is the scope of Art. 362 ? (4) Does Art. 363 exclude the jurisdiction of this Court from considering whether the impugned orders are ultra vires the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no agreement between the concerned parties, the British Government under the Independence Act, 1947 divided the then British India into two parts, India and Pakistan. So far as the Indian States were concerned, it allowed its paramountcy to lapse and those States were asked, if they so choose, to enter the new relationship with one or the other of the Dominions or remain independent. The paramountcy of the British Crown was not inherited either by India or by. Pakistan. It was allowed to lapse. This situation created a crisis. There was an imminent threat to the unity of India, politically as well as economically. The situation called for the highest degree of. statesmanship on the part of our leaders. Naturally the Rulers of the Indian States were anxious to remain as independent sovereigns but they could not have been oblivious of the internal and external dangers to their authority. It was a highly explosive situation. Sardar Vallabhbhai Patel with his political sagacity and pragmatic approach, availing himself. of the co-operation of Lord Mountbatten and the assistance of his energetic and tactful Secretary, V. P. Menon first persuaded practically all the Rulers to accede to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of their States. I The main part of our obligation under these Agreements is to ensure that-the guarantees given by us in respect of privy purses are fully implemented. Our failure to do so would be a breach of faith and and seriously prejudice the stabilisation of the new order". Even quite recently, both our President and the 'Home Minister acknowledged with gratitude the sacrifice made by, the 'Indian Rulers. But it was argued onbehalf of the respondent that we should not take those utterances at their face value. It was indirectly suggested that those expressions were platitudes intended to achieve some political purposes. If that be so, all that one can say is, mysterious are the ways of politics. The respondent in its counter-affidavit has taken the stand that the people of this country having become conscious of their social. and economic rights would not tolerate any longer the concept of Rulership or the privy purse or any of the privileges incorporated in the Covenants and Merger Agreements. There- fore it was the duty of the Government to give effect to the will of the people. It has also taken the stand that the concept of Rulership, privy purse and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position to go into this controversy. Our duty is to obey the Constitution. The question of public opinion is not relevant for our purpose. Many of the safeguards provided in the Constitution are for the benefit of the minorities. The Government might have acted with the best of intentions. But the real question is whether it has acted within the powers conferred on it by the Constitution. In this connection it would be worthwhile to borrow and adapt some (1) the observations of Chief Justice Patanjali Sastri in State of Madras v. V. G. Row([1952] S.C.R. 597 at p. 605.). If the courts in this country face up to, important and none too easy task of declaring void any of the important policy decisions taken by the Government it is not out of any desire to tilt at executive authority in a crusader's spirit, but in the discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the fundamental rights, as to which this Court has been assigned the role of a sentinel on the quivive. In these cases as in other cases we do not seek to sit in judgment on Govern- ment's policies. They are the concern of the legislative and the executive organs o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the President as the successor of such Ruler. " This clause has two parts namely : (1) the Prince, Chief or other person of an Indian State who had entered into any Covenant or Agreement as is referred to in cl. (1) of Art. 291 and who is for the time being recognised by the President as the Ruler of the State; and (2) any person who for the time being is recognised by the President as the successor of such a Ruler namely the Ruler who entered into the Covenant or Agreement referred to earlier and recognised by the President. The words "other person" in the first part of Art. 366(22) means someone analogous to a Prince or Chief of a former Indian State who had entered into the Covenant or Agreement referred to in that clause. It cannot be some third person because, no person other than a ruler of an Indian State had entered into any Covenant or Agreement with the Dominion of India. The words "other person" should be read ajusidem genesis with the words "other person" should be read ejusidem genesis with the words were known by various names such as Maharana,, Maharaos, Maharaja, Nizam etc. To avoid listing all those names in Art. 366(22) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence the words ",for the time being" in the first part of Art. 366 can only come into play if there was any error in locating the person who entered into the Covenant or Agreement, the condition for, the recognition being that the person recognised must be the person who entered into the Covenant or Agreement. So far as the second part is concerned the expression "for the time being" is relevant as the question of recognition of a new Ruler arises on the death of each Ruler. On each of those occasions, the President has to find out as to who is the successor according to law and in the absence of law, according to custom, of the Ruler who ,entered into the Covenant or Agreement. The procedure of recognition of Rulers appears to have been intended as a status symbol and also to avoid the necessity of hunting up Covenants and Agreements at the time of payment of privy purses and while affor ding other privileges and rights. Art. 366(22) contemplates that for each Indian State, there shall be a Ruler at any given point of time. That Article does not say that the, President may recognise a Ruler. On the other hand it speaks of the Ruler who "for the time bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... General Clauses Act, 1897 is irrelevant. We have already. seen that Art. 366(22) contemplates that each Indian State must have a Ruler, at all times so long as the Ruler who entered into the Covenant or Agreement or a successor of his is in existence otherwise Arts.- 291 and 362 will become meaningless. They will be empty shells if "Ruler" referred to in Art. 291 (b) Art. 362 and Entry 34 of List I of the Seventh Schedule must ,necessarily be that person who is recognised as Ruler by the President under Art. 366(22). If the President fails to or declines to discharge his function under Art. 366(22), Arts. 291 and 362 would become inoperative. In effect the benefit conferred bythose Arts. will be denied to the person entitled to be recognised as a Ruler of a particular Indian State. Further the legislative power given under Entry 34 of List I of the Seventh Schedule would disappear. It is to give meaning to Arts. 291, 362 and Entry 34 of List I of the Seventh Schedule, a duty is imposed on the President to recognise the Ruler of each Indian State. In my opinion Art. 366(22) imposes a constitutional duty on the President. To enable him to discharge that duty, certain limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 342(1) of the Constitution, the President was given power to specify the castes which he considered to be Scheduled Castes and the Tribes which he considered to be Scheduled Tribes. Though both the Articles say the President "may" specify the Castes which he considers as Scheduled and Tribes which he considers Scheduled, it is clear that a constitutional duty was imposed on him to specify which castes were Scheduled Castes and which Tribes were Scheduled Tribes for the purpose of the Constitution. The word "may" in those clauses must be read as "must" because if he had failed or declined to. specify the Castes and Tribes, Arts. 330, 332, 334, 335, 338 and 340 would have become inoperative and the constitutional guarantees given to the Scheduled Castes and Scheduled Tribes would have become meaningless. At this stage it may be noted that under Art. 366(24) and (25) Scheduled Castes and Scheduled Tribes are defined as such Castes, races, tribes, tribal communities or their parts or groups within them as are deemed under Art 341 and 342 respectively. Again under 'cl. (7) of Art. 366, the President is given power to determine for the purpose of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possible to spell out a power to abolish the Rulership under Art. 3 66 (22). It was strenuously argued by the learned Attorney General that the power of recognition of the Rulers found in Art. 366(22) is a facet of the paramountcy enjoyed by the British Crown before the 15th August, 1947. No such plea was taken in the counteraffidavit. The argument of the learned Attorney General on this point was somewhat indefinite. He was hesitant to call the power embodied in Art. 366(22) as a paramount power but yet he was repeatedly asserting that it contains certain aspects of paramountcy. It is strange that the learned Attorney General representing the Union of India should have claimed that the Government of India inherited any aspects of the paramountcy exercised by the British Crown. Paramountcy as claimed by the British Rulers was one of the manifestation of imperialism. It is surprising that the Government of this country whose people had fought imperialism for years and who are even today supporting both morally as well as materially the countries which are fighting imperialism should claim to have inherited even a fraction of impeperialism should claim to have inherited even a fract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of power is impermeable under Art. 366(22). Exercise of a constitutional power for collateral' reasons has been considered by this Court in several decisions as a fraud on that power-see Balaji v. State of Mysore((1963). Suppl. 1. S.C.R. 439). Breach of any of the Constitutional provisions even if made to further a popular cause is bound to be dangerous precedent. Disrespect to, the Constitution is bound to be broadened from precedent to precedent and before long the entire Constitution may be treated with contempt and held up to ridicule. That is what happened to the Weimar, Constitution. If the Constitution or any of its provisions have ceased to serve the needs of the people, ways must be found to change them but it is impermissible to by-pass the Constitutions its provisions. Every contravention of the letter or the spirit of the Constitution is bound to have chain reaction. For that reason, also the impugned orders must be held to be ultra vires Art. 366(22). The impugned orders also violate Art. 53 (1 ) of the Consti- tution which directs the President that the executive power of the Union shall be exercised by him either directly or through the, officers subordinate to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Kunwar Shri Vir Rajendra Singh v. Union of India and Ors. ([1970] 2, S.C.R. 631) The facts of that case are : After the death of the previous Ruler of Dholpur who had been recognised by the President under Art. 366(22), there was dispute as regards his successor. That dispute was inquired into by a committee presided over by the Chief Justice of the Rajasthan High Court. On the recommendation of that committee, the President was pleased to recognise Maharaja Rana Shri Hemant Singh as the successor of the previous Ruler. Kr. Shri Vir Rajendra Singh challenged that decision by means of a .writ petition under Art. 226 of the Constitution.' That petition was dismissed by the High Court. In appeal this Court affirmed the decision of the High Court. I was a party to that decision. In that decision, it was held that the recognition granted by the President under Art. 366(22) could not be challenged in court of law. The only point in dispute in that case was as to who was ;the successor to the deceased Ruler. This Court came to the conclusion that under the circumstances of that case the decision of the President was not open to challenge. In the course of the judgment it was obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... External Affairs and Communications. But nonetheless as a result of the accession, the concerned Indian States became parts of the Dominion of India. At the time those Instruments were executed, no question of either guaranteeing the privy purses to Rulers or preserving their privileges arose. Hence those Instruments did not refer to any rights and privileges of the Rulers. Very soon after the execution of the Instruments of Accession other developments took place in quick I succession. Most of the small Indian States fully merged in the Dominion of India. Under the merger Agreements the privileges then enjoyed by the Rulers, their right to get the, privy purses fixed under the agreement as well as some of the rights of the third parties referred to in the agreements were guaranteed. Excepting in the case of Bhopal, the privy purses to be paid to the Rulers were to be paid from out of the revenues of their former States. Under the Merger Agreement entered into between the Governor- General and the Nawab of Bhopal, the Nawab was entitled to receive the privy purse stipulated therein from the Government of India. It is not stated in the agreement that the same has to come out from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulated in accordance with the provisions of the Act known as 'the Succession to the Throne of Bhopal Act of 1947' which was in force in the State at the time of the agreement. Under the Merger Agreement entered into by the Maharaja of Manipur, he was given a right to the use of the Residences known as 'Redlands' and 'Les Chatalettes' in Shillong and the property in the town of Gauhati known as "Manipuri Basti" though all those properties were considered as the State properties. Then came the States Merger (Governors' Provinces) Order 1949, an order made under s. 290(A) of the Government of India Act, 1935. Under this Order, several of the States that had merged in the Dominion of India were added on to one or the other of the Provinces. Thereafter those States became a part of those Provinces. Section 7(1) of that Order provides "All liabilites in respect of such loans, guarantees and other financial obligations of the Dominion Government as arise out of the governance of a merged State, including in particular the liability for the payment of any sums to the Ruler of the merged State on account of his privy purse or to other persons in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... States of Rajasthan and 5. United States of Travancore and Cochin. Those unions were formed on regional basis. Various Indian States in a particular region merged together and formed a union. The concerned States entered into a Covenant under which the union was formed. To those Covenants, the Dominion of India was not a party. Under those covenants, the covenanting States agreed to entrust to the Constituent Assembly to be formed in accordance with the provisions of the covenant the work of framing a Constitution for the union. Each of those unions were to have a Rajpramukh who was to be the head of the union.' There were provisions in those covenants for the formation of a Council of Ministers to aid and advise the Rajpramukh in the exercise of some of his functions. Under those covenants, the Ruler of each of the covenanting State was entitled to receive a fixed privy purse annually from the revenues of the concerned union. That amount was to be free of all taxes, whether imposed by the Government of the concerned union or by the Government of India. In the matter of raising, maintaining and administering the military force of the concerned union, the Rajpramukh was to act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his covenant, the Rulers of Gwalior and Indore shall continue to have and exercise their present ,powers of suspension, remission or commutation of death sentences in respect of any person who may have been or is hereinafter, sentenced to death for a capital offence committed within the territories of Gwalior or of Indore, as the case may be." Under Art. VIII of the covenant entered into by the Rulers of Travancore and Cochin forming the United State of Travan- core and Cochin, it was provided that the obligation of the covenanting State of Travancore to contribute from its general revenue a sum of ₹ 50 lakhs every year to the Devaswom fund shall from the appointed day be the obligation of the United State and the said amounts shall be payable therefrom and the Rajpramukh shall cause the said amount to be paid every year to the Travancore Devaswom Board and the Executive Officer referred to in sub-clause (b) of that article respectively. In respect of the administration of Padamanahhaswamy Temple the right of the Ruler of Travancore was preserved under Art. VIII(b) of the covenant. Similarly the existing rights of the Rulers of Travancore and Cochin as regards the mana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the Consolidated Fund; and (4) the sums so paid to any Ruler to be exempt from all taxes on income. According to Mr. Palkhiwala, learned Counsel for some of the petitioners, Art. 291, guarantees the payment of privy purses referred to in various Merger Agreements and Covenants to the concerned Rulers, charges the same on the Consolidated Fund of India and makes them payable out of that fund to the Rulers, exempt from all taxes on income. He contended that Art. 291 confers a legal right on a Ruler to claim the privy purse to which he is entitled to, from the Dominion of India. He asserts that the right created in favour of the Rulers, is enforceable in court of law. But according to the learned Attorney-General, Art. 291 does not create any legal right in favour of the Rulers. That Art. merely gives a moral assurance to the Rulers that the privy purses guaranteed under the Covenants and Agreements will be paid by the Union of India. He further contended that Art. 291 merely recognizes the obligation undertaken by the Dominion of India either under the Merger Agreements or under the Covenants and it does not create any new right or obligation. According to him the expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they were payable earlier. The terms of payment, to some extent are also different inasmuch as the privy purses provided under the Merger Agreements and Covenants were free of all taxes but the privy purses guaranteed under Art. 291 are exempt only from tax on income. In support of his contention that the liability undertaken under Art. 291, is merely a continuation of the earlier liability the learned Attorney-General strongly relied on the first part of Art. 291 which says : "Where under any covenant or agreement entered into by the Ruler of any Indian State before the commencement of this Constitution, the payment of any sums, free of tax, has been guaranteed or assured by the Government of the Dominion of India to any Ruler of such State as privy pure........" From this he wants us to conclude that the liability under- taken under Art. 291 is nothing but a continuation of the liability arising under the Covenants and Agreements. Here again the learned Attorney-General is not correct. That part of Art. 291 does not create any liability. It is only a legislation by incorporation. That part of the Article points out the person who is entitled to the privy purse and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge is created by the Constitution cannot be taken away even by the Parliament. The learned Attorney-General and Mr. Mohan Kumaramangalam read to us passages from May's Parliamentary Practice and other treatises on Parliamentary Practice and Procedure to show how the practice of charging certain items of expenditure on the Consolidated Fund of England came into being. They also invited our attention to some of the statutes passed by the British Parliament. Neither the treatises on which they relied nor any of the statutes to which they referred show that the charging of an item of expenditure on the Consolidated Fund in favour of a person does not create a legal right in him to get that amount or that the same does not pledge the Consolidated fund for the payment of that amount. In fact some of the Statutes referred to by them do show that some of the items of expenditure charged on the Consolidated fund were required to be paid in preference to the other items. On the other hand Mr. Palkhiwala referred to us to the Dictionary of English law by Earl Jowitt (1959 Ed) Vol. 1, page 459, wherein the meaning of the expression 'charged on the consolidated fund' is explaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of India Act, 1935. The contention of the learned Attorney General that the ex- pression "paid out of" in cl. (a) of Art. 291 refers to the fund out of which it is to be paid out and not to the person to whom it is payable is also not correct. Under Art. 291 as it now stands, there is only one fund and that is the Consolidated fund of India. Therefore there is no question of pointing out the fund from out of which the payment is to be made. If some amount is required to be paid out of the Consolidated Fund of India, it must be paid out to somebody. There cannot be any paying out in abstract. To whom that payment is to be made is made clear by cl. (b) of Art. 291. it is to be paid to the Ruler as defined in Art. 366(22). Even before Art. 291(2) was deleted the privy purses were to be paid out of the Consolidated fund of India though some of the States had a liability to reimburse the Union to a certain extent. According to the learned Attorney-General on the date when Art. 291 came into force, no Ruler had been recognised under Art. 366(22). Therefore we cannot spell out any commitment under Art. 291. We have earlier seen while discussing the scope of Art. 366(22) that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swom Fund. This payment is guaranteed under Art. 290 (A). , Under Art. 291 the payment of the privy purses is similarly guaranteed Arts. 290(A) and 291 are more or less similarly worded. If the mandate contained in Art. 291 is an unenforceable mandate, similar would be the position so far as Art. 290(A) is concerned. If the mandates contained in these Articles are unenforceable these Articles can only have ornamental value. It is difficult to believe that the Constituent Assembly would have indulged in an exercise in futility. We repeatedly asked the learned Attorney General that if Art. 291 did not create a legal 181, right, what purpose that Article was intended to serve and why did the Constituent Assembly put that article, in the Constitution. His answer was that under Art. 291 while the payment of privy purse received a constitutional sanction, it received no, constitutional guarantee. This distinction to my mind appears, to be a distinction without difference. Every constitutional sanction for payment is necessarily a mandate to pay if that sanction relates to the discharge of an obligation. It is an enforceable mandate. As seen earlier that a fair reading of Art. 291 shows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution has recognised the liability to pay the privy purses to the Rulers and the obligation in question has received constitutional sanction. It is clear from the stand taken by him that the Government will not respect the mandate of the Constitution if that mandate is not enforceable by law. We have to proceed on the basis that the learned Attorney General made that submission on the strength of the instructions received by him from the respondent. But yet, it is difficult to believe that the executive which is a creture of the Constitution, whose head (the President) and the members of the cabinet had taken the oath of allegiance to the Constitution would take the stand that they will not respect a mandate of the Constitution unless that mandate is enforceable in a court of law. The enforceability of a constitutional mandate is one thing, the existence of such a mandate is another. Whether a particular constitutional mandate is enforceable or not, it is all the same binding on all the organs of the State. No organ of the State can choose to disregard any of the mandates of the Constitution. There are many mandates in the Constitution which are not enforceable through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India or any of its predecessor Governments was a party and which has or has been continued in operation after such commencement, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement, covenant, engagement, sanad or other similar instrument." Under cl. (2) of that Article "Indian State" is defined for the purpose of that article as meaning any territory recognised before the commencement of the Constitution by His Majesty or the Government of the Dominion of India as being such a State, and the "Ruler" for the purpose of that article is defined thus " "Ruler" includes the Prince, Chief or other person recognised before such commencement by His Majesty or the Government of the Dominion of India as the Ruler of any Indian State." Art. 363 has two parts : the first part deals with disputes arising out of any provisions of a treaty, agreement or covenant etc., and the second part with dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all within the 'scope of Art. 362 but also the right arising from Art. 291. It was urged by him that Art. 291 also protects only. a personal right. Therefore it is a matter that falls within the scope of Art. 362, Consequently any dispute relating thereto is excluded from the jurisdiction of this Court under Art. 363. Privy purse was taken out for special treatment by the Constitution under Art. 291. Therefore it is excluded from the general provision in Art. 362. Arts. 291 and 362 have to be construed harmoniously. It is a well known rule of construction that a special provision excludes the general provision. Hence I have to reject the contention that Art. 363 includes the right to get privy purses because it also comes within the scope of Art. 362. If it is otherwise, there was no need to enact Art. 291. Further there was no purpose in guaranteeing the payment of privy purses under Art. 291 and then taking away the right to recover them under Art. 363. We have earlier seen that in the case of most of the Rulers, the right to receive privy purse was an enforceable right even before Art. 291 came into force. it is not easy to accept the contention that what was an enforceable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that situation. That appears to have been the main reason for enacting Art. 363. Evidently there were other reasons also for enacting Art. 363. Some of the Rulers who had entered into Merger Agreements were challenging the validity of those agreements, even before the draft of the Constitution was finalised. Some of them were contending that the agreements were taken from them by intimidation; some others were contending that there were blanks in the agreements signed by them and those blanks had been filled in without their knowledge and to their prejudice. The merger process went on hurriedly. The Constitution makers could not have ignored the possibility of future challenge to the validity of the Merger Agreements. Naturally they would have been anxious to avoid challenge to various provisions in the Constitution which are directly linked with the Merger Agreements. As seen earlier Art. 363 has two parts. The first part relates to disputes arising out of Agreements and Covenants etc. The jurisdiction of this Court as well as of other courts is clearly barred in respect of disputes falling within that part. Then comes the second part of Art. 363 which refers to disputes in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rger of the Indian States in the Dominion of India in pursuance of Merger Agreements. Nothing so startling could have been intended by the Constituent Assembly. If it is otherwise, the life, liberty and property of that section of our citizens would be under the mercy of our Government because if they complain against any high handedness on the part of the Government, the Government can seek shelter under Art. 36. The word 'relating' in Art. 363, in my judgment means "to bring into relation" or "establish relation between". In other words the provision of the Constitution in question must be linked with the Merger Agreements or Covenants directly and immediately. It must have no independent existence. That is not the position under Art. 366(22). It is an independent provision. It has nothing to do with the Agreements and Covenants. It does not take any strength from the Covenants and Agreements. The power to recognise the Rulers is a new power conferred on the President by the Constitution. There was no such power under the Agreements and Covenants. Between 1947 and 25th of January, 1950 there was no question of recognising the Rulers of Indian States. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agreements and Covenants as they had their origin or genesis in the Agreements and Covenants. If that is so Art. 363 becomes all pervasive. We have earlier noticed the far reaching implications of such conclusion. The petitioners contend that the plea of the respondent that Art. 291 does not confer a legal right on the Rulers to get privy purses cannot be considered as raising a genuine dispute and that contention is a mere manoeuvre to oust the jurisdiction of this Court and hence the same cannot be considered as dispute within Art. 363. According to the petitioner the said plea of the respondent is a mere pretence and not a dispute because dispute in law means a triable issue and not an assertion which is exfacie untenable. It is not necessary to examine these contentions. The basic issue arising for decision in these cases is of far greater significance than it appears at first sight. The question whether the Rulers can be derecognised by the President is of secondary importance. What is of utmost importance for the future of our democracy is whether the executive in this country can flout the mandates of the Constitution and set at night legislative enactments at its discreti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt held that as the suits were really to enforce the plaintiffs' right under the Instruments of accession and the dispute between the parties really arose out of those instruments, in view of Art. 363(1) is court had no jurisdiction to hear the suits. The principal controversy in that case came squarely, within the ambit of the first part of Art. 363(1). Hence that decision is not relevant for our present purpose. The next case referred to is Visweshwar Rao v. The State of Madhya Pradesh([1962] S.C.R. 1020.). Therein the dispute was about the validity ,of some of the Provisions of the Madhya Pradesh Abolition of Proprietory Rights (Estates Mahals, Alienated Lands) Act (1 of 1951). One of the contentions advanced on behalf of the petitioner in that case was that by the terms of the Merger Agreement, the properties concerned in that case were declared as the, petitioner's private properties and were protected from State legislation by the guarantee given under Art. 363 of the Constitution and hence the impugned Act was bad as that contravenes the provisions of that Art. The Court rejected that contention with these observations : "It is true that by the covenant of me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vileges and dignities of the Ruler of an Indian State were guaranteed, it does not import any legal obligation enforceable at the instance of the erstwhile Ruler of a former Indian State. If, despite the recommendation that due regard shall be had to the guarantee or assurance given under the covenant or agreement, the Parliament or the Legislature of a State makes laws inconsistent with the personal rights, privileges and dignities of the Ruler of an Indian State the exercise of the legislative authority cannot, relying upon the agreement or covenant, be questioned in any court and that is so expressly provided by Art. 363 of the Constitution." The only remark in the above observation relevant for the purpose of the present cases is : "Even though Art. 362 is not restricted in its recommendation to agreements relating to the privy purse" thereby meaning that guarantee as regards the privy purse also comes within the scope of Art.362. This is a casual remark. In that case the Court had no occasion to consider the scope of Art. 291 or Art. 362. The decision of this Court in ('H. H. The Maharana Sahib Shri Bhagwat Singh Bahadur of Udaipur v. State of Rajasthan and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the strictest sense a political pension. The obligation to pay as well as the actual payment of the pension, must in such circumstances, be ascribed to reasons of State Policy. Relying on these decisions and taking into consideration the nature of the liability in relation to the payment 'of privy purse, this Court held that Privy Purse is a political pension and as such, the same is not liable to be attached. This, in short is the ratio of the decision. If the decision had said nothing more it would not have advanced the case of the respondent. But in the course of the judgment Bachawat J. who spoke for the Court after summarising Arts. 291, 362 and 363 observed as follows "On the coming into force of the Constitution of India the guarantee for the payment of periodical sums, as privy purse is continued by Art. 291 of the Constitution but its essential political character is preserved by Art. 363 of the Constitution, and the obligation under this guarantee cannot be enforced in any municipal court. Moreover, if the President refuses to recognise the person by whom the covenant was entered into as the Ruler of the State, he would not be entitled to the amount payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to build upon it. In my opinion none of the questions of law arising for deci- sion excepting that relating to the petitioners' right to move this Court under Art. 32 is res Integra. The only question remaining for consideration is whether the petitioners have been able to establish any construction of their fundamental rights in order to entitle them to move this Court under Art. 32. This question need not detain us for long. The petitioners have complained that the rights under Arts. 14, 19, 21 and 31 have been contravened. As I am satisfied that the rights under Arts. 31 and 19 (1) (f) have been contravened it is not necessary to examine the alleged contravention of other rights. I have earlier come to the conclusion that the right to get the privy purse under Art. 291 is a legal right. From that it follows that it is a right enforceable through the courts of law. Thai right is undoubtedly a property. A right to receive cash grants annually has been considered by this Court to be a property-see State of M.P. v. Ranojirao Shide and Anr([1968] 3, S.C.R. 489). Even if it is considered as a pension as the same is payable under law namely Art. 291, the same is property-see M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merger. The obligation to, pay privy purse and the guarantee regarding privileges cannot be abolished by an executive order. The whole purpose of the order is to deprive the petitioner of privy purse and privileges, guaranteed under the Covenants and Merger Agreements and also guaranteed and asured by Articles 291 and 362 of the Constitution. The whole object of the order is to override and overrule the Constitution on the point of Rulers rights, privileges and privy purses after the rejection of the Constitution (24th Amendment) Bill by the Rajya Sabha. Secondly, derecognition of all the Rulers en masse is itself .the clearest possible proof that the whole object is to abolish the institution of Rulership altogether and the rights and privileges .attached thereto including the right to privy purse. Under-the Merger Agrements and Covenants a Ruler is entitled to privy purse, rights and privileges enjoyed before 15 August, 1947 and succession to the gaddi in accordance with the law and custom of the family. The Government of India in discharge of the obligation to ensure the fulfilment of these rights has been recognising successors to Rulers and paying privy purses to the Rulers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t authority of law in violation of Article 31(1). The privy purse is in substance and in reality compensation for the transfer by Rulers of inter alia their properties and it is not competent to the Government to abolish the right without compensation in the form of privy purse. Sixthly, the Rulers, it is alleged, acted on the faith of the undertakings and guarantee given by the Government of India regarding privy purses and preservation of Rulership and of personal rights and privileges. The Rulers acted to their detriment by giving away vast properties. The Government is, therefore, estopped by the doctrine of promissory estoppel from refusing to pay the privy purse. A fiduciary duty is cast on the Government of India to respect and implement the provisions of the Merger Agreements and the Covenants: The Government is bound by its pledged words to pay privy purse and to recognise Rulership. Alternatively, the order leaves the Merger Agreements and Covenants untouched and the Union is bound to pay privy purse and to recognise the personal rights and privileges and to discharge all obligations under the Covenants and Merger Agreements and the Constitution. Finally, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plea of the bar of jurisdiction of this Court under Article 363 at the threshold. Article 363 is as follows : "363. (1) Notwithstanding anything in this Constitution but subject to the provisions of Article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which the Government of the Dominion of India or any of its predessor Governments was a party and which has or has been continued in operation after such commencement or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty,, agreement, covenant, engagement, sanad or other similar instrument. (2) In this Article- (a) "Indian State means any territory recognised before the commencement of this Constitution by His Majesty or the Government of the Dominion of India as being such a State; and (b) "Ruler" includes the Prince, Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment was disputing the very obligation enacted by those Articles in the Constitution. Dispute in Article 363 was said not to cover a dispute the raising of which was expressly prohibited by the other provisions of the Constitution. Thirdly, any executive action in violation of Articles 291 and 362 or beyond the ambit of Article 366 (22) would be a violation of Articles 53 and 73 of the Constitution and the latter Articles did not at all relate to Covenants or Merger Agreements. The refusal to pay privy purse was said to be in viola 4 of Articles 112, 113 and 114. Again it was said that if a law was passed in violation of Articles 291 or Article 362 it would be a breach of Articles 245 and 246 which Articles were not related to Covenants or Merger Agreements at all. Fourthly,, an executive action which is ultra vires or mala fide is a nullity and the bar of jurisdiction under Article 363 would apply only where the action is bona fide and cannot apply where the order is ultra vires and nullity. Article 363 bars the jurisdiction of all courts in respect of any dispute covered by the Article. It is seriously challenged and controverted by the Government that Articles 291 and 362 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... British Cabinet Mission came to India in the month of March, 1946. The Mission came to bring about a change in the British policy towards India. Imperialism was crumbling after the Second World War. The Cabinet Mission in no uncertain terms said that when India was going to be an independent country it was not only necessary but also desirable that the Indian States should combine with free India for security, stability and solidarity. The Rulers of Indian States also realised the importance of such a measure in an advised age when the leaders of our country impressed upon the Rulers the wisdom. of such a course of action to avert the upheaval and upsurge of the people in the Indian States which were also tottering with the decline of British imperialism. It is in this background that the Cabinet Mission declared in May, 1946 that paramountcy of the British Crown which provided the basis of relations between British India and the Rulers of Indian States could neither be retained by the British Crown nor transferred to the new Government of India. The paramount power in British India was derived from the Royal Prerogative. The rights which the paramount power claimed in exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government of India by stating that "the people of India were knit together by bonds of blood and feeling no less than of self-interest" and "no impassable barriers could be set up between us" and he said that the alternative to co- operation was anarchy and chaos. There was special meeting of the Rulers on 25 July, 1947. The then Crown re- presentative Lord Mountbatten in the course of his address to the Rulers advised them to accede to the appropriate Dominion in regard to three subjects of Defence, External Affairs and Communications and assured them that their accession on these subjects would involve no financial liability and in other matters there would be no encroachment on their internal sovereignty. Barring three States the other Indian States acceded to the Dominion of India by 15 August, 1947. The Indian Independence Act was to come into existence on '15 August, 1947. Section 7 of the Indian Independence Act, 1947 provided that with the lapse of suzerainty of the Crown over Indian States all treaties and agreements between the Crown and the Rulers of Indian States, all functions exercisable by the Crown with respect to India in States, all obli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays, Posts, Telegraphs and Telephones, Railways, Salt, Central Excises and 'Wireless. The pattern of integration of Indian States was not uniform in all cases. There were 562 Indian States whereof 216 merged in Provinces, 61 were taken over as centrally administered areas and 275 integrated in different Unions of States. The Merger Agreements were entered into by the Rulers with the Dominion of India. The two important clauses in the Merger Agreements were one whereby the Ruler, was to be entitled to receive from the revenues of the State annually for his privy purse the sum mentioned therein free of taxes and the other whereby the Dominion Government guaranteed succession according to law and custom to the gaddi of the State and to the Ruler's personal rights, 14- L744supCI/71 privileges,, dignities and titles. These two principal clauses are to be found in all Merger Agreements. There were differences in the Merger Agreements as to the amount of privy purse and in some cases as to the rights of successors to Rulers with regard to privy purses. The Rulers of Centrally merged States also entered into similar agreements with the Dominion of India. Those agreements also had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have acceded to the Dominion if the Governor-General signified his acceptance of an instrument of accession making a declaration in terms of section 6 thereof. Accession was to be subject to the terms of the instrument. It has already been noticed earlier that all Rulers of Indian States executed Instruments of Accession but some Indian States thereafter merged with the Governors' Provinces and some were centrally administered areas after merger and then formed Unions of States. It should be noticed that the Government India Act, 1935 did not provide for any Merger Agreement. These Merger Agree- ments in the case of Provincially merged and Centrally merged States did not have any legal basis and sanction under the Government of India Act, 1935. The Extra Provincial Jurisdiction Act 'was therefore passed in the year 1947 giving power to the Central Government to exercise extra provincial jurisdiction over a Provincially merged or a Centrally merged State only if the Centre had by treaty, agreement, acquired full and exclusive authority and jurisdiction and power for and in relation to the governance of the State. The administration of the merged Indian States could not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inces) and 'States Merger (Chief Commissioners' Provinces) Orders, 1949 the position of the provincially merged States became to all intents and purposes, the same as that of the provinces. Similar progress was also made in the direction of improving the administrative machinery of the Chief Commissioner's Provinces which :assimilated the centrally merged States. Mr. Palkhivala on behalf of the petitioner contended that the developments and integration of Indian States on the basis of the Instruments of Accession and the Covenants and Merger Agreements were constitutional developments and provided constitutional obligations. The Attorney General on the other hand rightly contended that the entire relationship of the Dominion of India vis-a-vis the Indian States was in the-domain of Acts of State and the Instruments, Merger Agreements and Covenants did not have any constitutional sanction and obligation and were totally unenforceable in municipal courts. The British Crown as Sovereign State dealt with the Indian States and either conquered or annexed their territories or Rulers of these States ceded their territors or some Rulers entered into alliances with the British ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led on both the grounds of recognition and existing law. The Act of State is illustrated by the making of peace and war, the annexation or cession of territory, the recognition of a new State or new Government of an old State. Such acts have been held not to form the basis of action because they form the subject of political action in an Act of State. 'The sanction of an Act of State is political to all sovereign powers and that is why municipal courts accepted that position. It is in this background that the Attorney General described Article 363 as embodying the concept of paramountcy being recreated in the form of a constitutional provision excluding interference by Courts in disputes relating to Instruments of accession,. Covenants and Merger Agreements. The Attorney General did not submit that there was any paramountcy between the Republic and its citizens nor that there was any doctrine of paramountcy subsisting in our country after 1950 or that it survived as a constitutional provision. Article 363 and the other allied Articles really reflect what the makers of the Constitution picked up from the historical past and inserted in the Constitution. The Constitution provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of State. The other reason for insertion of Article 363 was that the rights accruing under or obligations arising out of provisions of the Constitution relating to covenants or merger agreements were imperfect rights. A question was posed that if there were rights as to succession, privy purse and privileges there should be a remedy. In the first place, there are no legal rights to recognition of Rulership, payment of privy purse and enjoyment of rights and privileges. Prior to the Constitution, the Rulers of Indian States could not start proceedings in municipal courts to enforce agreements or obligations arising out of covenants or merger agreements because such rights and obligations were unenforceable on the ground of dealings under Acts of State. The Constitution gave recognition to guarantees under covenants and agreements by the allied Articles 291, 363 and 366(22). The Attorney General characterised the payment of privy purse, enjoyment of rights and privileges and the recognition of Rulership as imperfect rights and obligations. Whatever rights and obligations are to be found in the merger agreements and covenants were recognised by the Constitution in relation to thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e circumvented. This Court held in the Seraikella case(1) that Article 363 is a bar in any dispute relating to covenants and merger agreements. In State of Gujarat v. Vahra Fiddali([1964] 6 S.C.R. 416.) this Court held that Article 363 precluded the municipal courts from considering and adjudicating upon any right under the Merger Agreement and guarantees were matters for the political department of the State and were thus outside the jurisdiction of this Court. Again, in Usman Ali Khan;s([1965] 3 S.C.R. 201.) case, this Court held 'that the privy purse was a political pension and the payment was in relation to covenants and Merger Agreements, and, therefore, Article 363 was a bar. in a recent decision of this Court in Kunwar Shri Vir Rajendra Singh v. The Union of India's OrS. ([1970] 2 S.C.R. 631.) it has been held that the recognition of rulership by the President is not an indicia of property but it entitles the Rulers to the enjoyment of Privy Purse contemplated in Article 291 and the personal rights, privileges and dignities mentioned in Article 362 of the Constitution. It was also held that the recognition of rulership by the President was an executive and political ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utency & Ors.( [1953] S.C.R. 1) Article 329 was construed to mean that the jurisdiction of the High Court under Article 226 to interfere in regard to rejection of a nomination paper could not be challenged by a writ of certiorari to quash the proceedings. This Court, observed the difference between the words "subject to the provisions of this Constitution" occurring in Article 328 and "notwithstanding anything in this Constitution" occurring in Article 329 and held that the words in Article 328 could not exclude the jurisdiction of the High Court. The effect of a non-obstante clause was also considered by this Court in Aswini Kumar Ghosh and Anr. v. Arabind Bose and Anr.( [1952]S.C.R. 218.). In that case section 2 of the Supreme Court Advocates Act, 1 provided that notwithstanding anything contained in the Bar Councils Act, 1926 or in any other law regulating the conditions, subject to which a person not entered in the roll of Advocates, of a High Court might be permitted to practise in that High Court every Advocate of the High Court shall be entitled as of right to practise in any High Court whether or not he is an Advocate of' that High Court. The petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to have been incorporated in the enactment by way of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment. The result was that all immoveable properties which when the Defence of India Act expired were subject to any requisition effected under the Defence of India Act and Rules thereunder were to continue to be subject to requisition until the expiry of the Ordinance. Mr. Palkhivala submitted that the petitioner's contention that the order of the President was a nullity was not a dispute within Article 363. The ordinary meaning of dispute is a contention, a controversy, a difference of opinion, a conflict of claims, and assertion of right on one side and the denial of it by the other. In Stroud's Judicial Dictionary it will appear that dispute as to whether a thing is ultra vires is nonetheless a dispute within an arbitration clause. In United Provinces v. Governor-General in Council([1959] F.C.R. 124) the plaintiff asked for a declaration that certain, provisions of the Cantonment Act, 1924 were ultra vires. The ,Governor-General in Council denied that the provisions were invalid and further contended that the dispute was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to stand in some relation to another thing. This is the dictionary meaning. Mr. Palkhivala submitted that the provisions of the Constitution, viz., Articles 366(22), 291 and 362 might have reference to the Covenant but were not related to the Covenant. That is a mere verbal subterfuge because the word relate is synonymous with the word refer. When Article 366(22) was introduced in the Constituent Assembly as will appear from the Constituent Assembly Debates, Vol. 10 it was said that "the form in which the Rulers find recognition in the new Constitution in no way impairs the democratic set up of the States". Recognition of a Ruler was necessary for the limited purpose of payment out of privy purse and it had no other reference. In Maharaja Pravir Chandra Bhanj Deo Kakatiya v. The State of Madhya Pradesh([1961]2S.C.R.501) the Ruler of the State of Bastar contended that he was still a sovereign Ruler and an absolute owner of certain villages and that the provisions of the Madhya Pradesh Abolition of Proprietary Rights Act did not apply to him. The Ruler of Bastar ceded to the Government of India full and exclusive authority in relation to the governance of the State and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on arises from the covenants and merger agreements and not from Article 366(22), because the covenants and merger agreements were signed by the Rulers and guaranteed by the Government. Under Article 366(22) it was that Ruler or his successor who could be recognised. The guarantee regarding succession to the gaddi according to law and custom is in the covenants and agreements. Such succession can only mean succession to the Ruler who signed the covenant. When the covenant guaranteed the succession, it was guarantee of succession to the Ruler who signed the covenant. Therefore, the obligation to recognise a Ruler arises only from the covenants and agreements. There is no legal enforceable right to recognition under the co ant. No legal right to Rulership arises under Article 366(22)either. If there were legal right, Article 366(22) would have said that a Ruler means the Prince by whom any covenant was entered into and who shall be recognised by the President as a Ruler. The recognition of Rulership does not exist in splendid iso- lation. The recognition of Rulership is intended only for the purpose of Article 291 and Article 362 in relation to covenants and merger agreements and for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under the, first part of Article 366(22). Therefore, the claim to be recognised a Ruler can only arise if he or his predecessor signed the covenant. There is express and direct relation to covenants. Counsel for the petitioner submitted that if the dominant and immediate purpose was not the enforcement of the covenant neither Article 291 nor Article 366(22) could be said to be related to the covenants or merger agreements. These words "dominant immediate purpose of enforcement of the covenant" are new words and therefore these words can neither be read into the Constitution nor the meaning of the words 'relate to" be allowed to have such a constricted meaning by the introduction of alien words. It was said that the covenants and merger agreements were meant only for the purpose of identifying the Rulers. Article 366(22) has been put in relation to Art. 291 and Art. 362 and one cannot abstract Article 366(22) from the collocation of those Articles. All these three Articles 291, 362 and 366(22) stem from the covenants and merger agreements and but for the covenants and merger agreements these Articles would have not been there in the Constitution. The entire co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y there was no bar of jurisdiction. The decisions are Smt. Ujjam Bai v. State of Uttar Pradesh([1963] 1 S.C.R. 778), S. Pratap Singh v. The State of Punjab ([1964] 4 S.C.R. 733), MakhanSingh v. State of Punjab([1964] 4 S.C.R. 779), Lala Ram Swrup & Ors. v. Shikar Chand and Ani.( [1966]2 S.C.R. 553,) and Anisminic Ltd. v. Foreign Compensation Commission([1969] 2 S.C.R. 147). It is a general rule that where Parliament has created new rights and duties and has appointed a specific Tribunal for their enforcement recourse must be had to that Tribunal alone. The jurisdiction of the courts of Law in those cases is ousted until the statutory process has been completed except in so far as the courts may prohibit the Tribunal from proceeding on the ground that it had no jurisdiction to determine a particular matter. In situations, where the courts have no jurisdiction to intervene, they may nevertheless review the validity of the final determination by the chosen Tribunal either on the, ground that the authority was not the one designated by the Act or where it was empowered to determine an issue it did not address itself to the matter committed to it or where it violated the rule, of natura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the plaintiff had sold the property was the plaintiff's successor in title. The House of Lords held that the word "determination" was not to be construed as including everything which purported to be a determination but was not in fact a determination because the Commission had misconstrued the provisions of the order defining their jurisdiction. The ratio of the decision of the House of Lords was not whether the Foreign Compensation Commission made a wrong ,decision but whether the Commission enquired into and decided a matter which they had no right to' consider. The Foreign Compensation Commission in that case, held that the Egyptian Organisation to whom the plaintiff company had sold the pro- perty was the successor-in-title and as the Egyptian Organisation was not a British National, the Commission rejected the claim of the English Company. These decisions deal with the jurisdiction of the appointed Tribunal, viz., whether the Tribunal has exceeded its jurisdiction or has failed to exercise its jurisdiction. In the present case,, the question for consideration is the provision of the Constitution which under some Articles confer jurisdiction on this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were excluded from jurisdiction. It is well-settled that what is forbidden directly cannot be achieved indirectly. In interpretting these four allied Articles when this Court finds that it has no jurisdiction it will say so and in saying so, the jurisdiction of this Court is not whistled down in any manner.' The jurisdiction of this Court is all pervasive and all embracing in regard to fundamental rights of citizens. The petitioners are citizens but the rights they claim are recognition of rulership, payment of privy purse and enjoyment of princely privileges which are not fundamental rights on account of unenforceability. These special rights belong to a world of their own and that is, why the makers of the Constitution intertwined Article 363 with the allied Articles 291, 363, 366(22) as the forbidden frontiers of Courts. It is now to be found out whether there are disputes with regard to payment of privy purses and whether such disputes can be said to arise out of the provisions of this Constitution, and thirdly Whether the provisions of the Constitution in Article 291 relate to covenants and merger agreements.. Mr. Palkhivala contended that there were no disputes as to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to any agreement entered into that behalf under clause (1) of Article 278 be determined by order of the President. Article 278 of the Constitution as it stood in 1950 provided that the Government of India might, subject to the pro- visions of clause (2) of Article 278 enter into an agreement with the Government of the State specified in Part B of the First Schedule with respect to inter alia the contribution by such State in respect of any payment made by the Government of India under clause (1) of Article 291 and when an agreement was so, entered into the provisions of Chapter I of Part XII of the Constitution (Articles 264 to 291 under the title Finance) shall in relation to such States have effect subject to the terms of such agreement. Article 278 and Article 291 (2) were omitted, by the Constitution (Seventh Amendment) Act, 1956 in the year 1956. By the same Constitution (Seventh Amendment Act, 1956 the First Schedule to the Constitution 'as it originally stood consisting of Parts A, B and C in regard to the States and the, territories of India was repealed and substituted by the First' Schedule containing the States and the Union territories. These provisions in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and recognised by the President. At once the provisions of Article 366(22) are attracted to find out as to who that Ruler is. It is a Ruler who is recognised by the President 'as the Ruler of the State. It is because of the combined effect of Articles 291. 366(22) and 363 that this Court in Nawab Usman Ali Khan A v. Sagarmal(supra) [1964] 5 S.C.R. 1held that privy purse was paid for political ,consideration and was not a right legally enforceable in any, municipal court and the political character was preserved by Article-363 by taking privy purse beyond the reach of courts of law. In Sri sudhansu Shekhar Singh Deo v. The State of Orissa ,and Anr. ([1971] 1 S.C.R. 779) this Court said on a consideration of Articles 291 and 362 that if in disregard of the guarantee or assurance given under the, covenant or agreement any legislation were made it could not be questioned in Court because of Article363. It is true that Article 362 speaks of guarantee of rights other than that of privy purse. It was said on behalf of the petitioner that the words "charged on and paid out of the consolidated fund" in Article 291 meant that a security was created in favour of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Rampur Merger Agreement mentioned certain amount as privy purse for the Nawab and a different sum for payment to the successors. The Bhopal Merger Agreement mentioned a certain sum for the Nawab and a different sum for the Nawab and a different sum for his successor. The Agreement of Himachal Pradesh Rulers mentioned a certain sum for the Ruler but did not mention 'about successors. The Bilaspur Merger Agreement mentioned a certain sum as privy purse of. the Raja which was to include the allowances of the Yuvraja but did not mention anything about successors. These difference illustrate that Article 291 is vitally related to the covenants and merger agreements and draw substance from them. The words "charged on and paid out of the consolidated fond" in Article 291 mean that the sum shall not be submitted to the vote of Parliament, and Article 113(1) makes a provision to that effect. Article 291 does not by itself create any independent right of any Ruler to be paid any sum out of any charged fund. If it were a charge, it would be a debt which would be assignable. It a Ruler were to 'assign or mortgage or create a charge in respect of his privy purse in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure that is to be made without vote of Parliament. These are first, a sum appropriated to a particular service which cannot be spent on another service, secondly, the sum appropriated is the maximum sum, and thirdly, it is available only in respect of charges which have arisen during one of the years to which the relevant Appropriation Act applies (See May Parliamentary Practice, 17th ed. 713). The tests used to determine whether the expenditure involves a charge on the consolidated fund are that a charge must be new and distinct, that it must be payable out of the exchequer and it is to be effectively imposed. In England it will appear that the Ministers of the Crown Act, 1937 in section 4 enacts that a pension under that section is payable as of :right. Section 7 of that English Act of 1937 used the expression "shall be charged and payable out of the consolidated fund". These provisions in the English Act show first that the right to be paid is under section 4 and the creation of a charge on the consolidated fund is under section 7. The words "charged on the Consolidated fund" in Article 291 mean that the expenditure is non-votable and these are terms of publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words "charged on and paid out of the consolidated fund" mean security and right to be paid neither the President, nor the Chairman or Deputy Chairman, nor the Speaker and the Deputy Speaker, nor the Judges of the Supreme Court, nor the Comptroller and Auditor General would have security as to payments. But, these persons do not derive their right to be paid from any covenant or merger agreement. Secondly, these persons hold offices under the Constitution whereas the Rulers do not. Thirdly, Articles 59(3), 97, 125, 148(3) indicate in no uncertain terms that they shall be entitled to such emoluments and allowances and privileges as may be determined by Parliament by law. In the case of the President, the Chairman, the Deputy Chairman of the Council of States, the Speaker and the Deputy Speaker of the House of the People Articles 59 (3) and 97 provide that there, shall be paid to them such allowances and salaries as may be fixed by Parliament, by law and until the provision in that behalf is so made such salaries and allowances as are specified in the Second Schedule. As for the Judges of this Court Article 125(1) enacts that there shall be paid to the Judges of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by Article 291. The rights guaranteed under the covenants and merger agreements are matters to which Article 291 relates. The guarantee of payment under the covenants and merger agreements is recognised under Article 291. This Article gives effect to the covenants and agreements and it is related to these. There were some arguments that if the amount charged on the consolidated fund on account of privy purse were not paid, the same would be carried over, in the Consolidated Fund from year to year. That is not so because any sum charged on the consolidated fund is not carried to the next year but it lapses. Article 362 has been held by this Court in Udaipur case (supra) to fall within Article 363. Article 291 has also been held by this Court to fall within the bar of Article 363 in Nawab Usman Ali Khan's case (supra). It was suggested that the only Article which could fall within Article 363 was Article 362 which was in closest proximity. That would be an erroneous approach to interpret the Constitution. Article 363 uses the words "provisions- of the Constitution". The word "provisions" indicate more than one Article. Even at the risk of repetition it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haracter of the liability regarding privy purse is not changed by the States (Merger Governors' Provinces) Order, 1949. The Act of State which commenced with the Instruments of Accession continued even after the merger agreements as has been held by this Court in Vohra Fiddali's case (supra). The liabilities in Articles 294 (b) and 295 (1 ) (b) of the Constitution refer to other legal rights which were enforceable in a court of law. Privy purses under the covenants and merger agreements were no such legal rights enforceable in a court of law for the obvious reason that if prior to the Constitution the covenants and merger agreements were sought to be enforced in a municipal, court the Government would have demurred on the plea of Act of State. That plea in bar would be available to the Government of India as a defence to any claim under Articles 294 (b) and 295 (1) (b). (See Union of India and Ors. v. Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd. and Anr.) ([1964] 7 S.C.R. 892 at 908) Furthermore, Article 295 (1 ) (b) cannot apply because neither privy purse nor privileges are matters enumerated in the Union List. Articles 291 and 362 are special provisions dealing wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act is derived only from his recognition as a Ruler under Article 366(22). Under the Income Tax Act, 1922 (,section 4(3)(x)) and the Income Tax Act, 1961 (section 10(19) amount received by a Ruler as privy purse is not in- clued as income. Under Income Tax Part B States Taxation concessions Order, 1950 the bonafide annual value of the palaces declared by the Central Government as official residence of the Ruler is exempted from taxation. Therefore, if the rights are derived from recognition of Rulership by the President under Article 366(22) and if the recognition cannot be impeached no right arises. Under the Gift Tax Act, tax is not leviable on gifts out of privy purse for maintenance of relatives or for performance of official ceremonies. If no privy purse is paid no question of any gift out of privy purse arises. Under the Hindu Succession Act the Act shall not apply to any estate which descends to a single heir by the terms of any covenant or agreement. Succession is a right which can be claimed by heirs of the petitioners. The petitioners cannot have any fundamental right of any such right under the Hindu Succession Act. Under the Estates Duty Act, exemption is given in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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