TMI Blog1993 (1) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... States and also continue to pay privy purse to them in addition to their arrears of amounts. For facilitating a proper understanding of the controversy that has led to the filing of these two writ petitions and the Interlocutory Application Nos. 1 to 3 of 1992 in Writ Petition No. 351 of 1972, a synoptical resume of the case as adumbrated in Writ Petition No. 351 of 1972 with the historical background may be stated. 2. The petitioner, Shri Raghunathrao Raja was the co-Ruler of Indian State of Kurundwad Jr. which was prior to August 15, 1947 a sovereign State in treaty relationship with, and under the suzerainty of the British Crown. 3. On the commencement of the Indian Independence Act, 1947, British paramountcy lapsed and the Indian States became completely sovereign and independent. They were free to accede to either of the two Dominions of India or Pakistan or to remain independent. The petitioner s co- Ruler, on behalf of both, executed an instrument of accession under Section 5 of the Government of India Act, 1935, as adopted under the Indian Independence Act, 1947. This instrument was accepted by the Governor General of India and the State thus became a part of the Domi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse, personal privileges etc. etc. However, it was later desired that the Constitution of the United States should also be framed by the Constituent Assembly of India and form part of the Constitution of India. It was decided in consultation with the Government of the United States that the Constitution of India as framed by the Constituent Assembly of India should itself contain all the necessary provisions governing the constitutional structure of the United States as well as the provisions for the guarantee contained in the covenants and the Merger Agreements. In pursuance of this decision the necessary provisions including Part VII providing for the Government, legislature, judiciary, etc. of the United States as well as certain separate articles governing other matters, for example, the privy purse and privileges of Rulers bringing them within the framework of the covenants were included in the Constitution of India. Accordingly on October 13, 1949 the Constituent Assembly of India adopted inter alia two articles - namely, Article 291 relating to payment of privy purse and Article 362 relating to personal rights and privileges of the Rulers. Amendments relating to the United S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sore who has ruled the State of Mysore from September 8, 1940 onwards until January 23, 1950 when the Treaty/Agreement was made between the Government of India and His Highness the Maharaja of Mysore. This petitioner also challenges the Constitution (Twenty-sixth Amendment) Act, 1971 on the same grounds as in Writ Petition No. 351 of 1972. 8. Of the various grounds, the most notable is whether the impugned Act is beyond the constituent power of Parliament and whether it has altered, destroyed and damaged the basic structure and essential features of the Constitution. The object of the impugned Act whereby the Parliament has omitted Articles 291, 362, inserted Article 363-A and substituted a fresh clause (22) for the original under Article 366 of the Constitution was to terminate the privy purses and privileges of the former Indian Rulers and to terminate expressly the recognition already granted to them under those two deleted articles. According to the learned counsel appearing for the writ petitioners the withdrawal of the guarantees and assurances given under those articles and the abolition of the privy purses, personal rights, privileges and dignities are in violent breach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India, the relative population ratio of the States was 28 per cent of the total population of the Dominion of India. All the above Indian States formed a separate part of India before their merger with the rest of India. It is common knowledge that the aim of Government of India Act, 1935 was to associate the Indian States with British India as equal partners in loose federation. When India became independent by the Indian Independence Act, 1947, British paramountcy in respect of the Indian States lapsed. Therefore, theoretically though the Rulers became independent, in actual fact almost all the Rulers signed Instruments of Accession in August 1947 surrendering Defence, External Affairs and Communications. The Rulers immediately after independence became divided into four classes. All the agreements of merger and covenants provided for the fixation of the Rulers privy purse which was intended to cover all the expenses of the Rulers and their families including the expenses of their residences, marriages and other expenses etc. Under the terms of the agreements and covenants entered into by the Rulers, privy purses were paid to the Rulers out of the revenues of the States concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t enormous amounts in respect of the Mahratta settlements alone. We are ourselves honouring the commitments of the British Government in respect of the pensions of those Rulers who helped them in consolidating their Empire. Need we cavil then at the small purposely use the word small price we have paid for the bloodless revolution which has affected the destinies of millions of our people.... Let us do justice to them; let us place ourselves in their position and then assess the value of their sacrifice. The Rulers have now discharged their part of the obligations by transferring all ruling powers and by agreeing to the integration of their States. The main part of our obligation under these agreements, is to ensure that the guarantees given by us in respect of privy purse are fully implemented. Our failure to do so would be a breach of faith and seriously prejudice the stabilisation of the new order. 16. The constitutional provisions of Articles 291 and 362 which are now deleted by Section 2 of the impugned Constitution (Twenty-sixth) Amendment Act as they stood, read as follows: 291. Privy purse sums of Rulers.- (1) Where under any covenant or agreement entered into by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the impugned Amendment Act which is also relevant for our purpose may be reproduced: 363-A. Recognition granted to Rulers of Indian States to cease and privy purses to be abolished.- Notwithstanding anything in this Constitution or in any law for the time being in force- (a) The Prince, Chief or other person who, at any time before the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, was recognised by the President as the Ruler of an Indian State or any person who, at any time before the commencement, was recognised by the President as the successor of such Ruler shall, on and from such commencement, cease to be recognised as such Ruler or the successor of such Ruler; (b) on and from the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, privy purse is abolished and all rights, liabilities and obligations in respect of privy purse are extinguished and accordingly the Ruler, or as the case may be, the successor of such Ruler, referred to in clause (a) or any other person shall not be paid any sum as privy purse. 19. The submissions advanced by Mr Soli J. Sorabjee, the learned senior counsel appearing on behalf of the writ peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal written submissions has further urged that without the cooperation of the Rulers, not only the territory of India, its population, the composition of the State Legislatures, the Lok Sabha and Rajya Sabha but also the Constitution that was adopted on November 26, 1949 would have been basically different and that India i.e. Bharat would have been fundamentally different from the Bharat that came into being. 21. In Writ Petition No. 351 of 1972 in ground Nos. 38, 39 and 40, it is contended that the Constitution (Twenty-sixth Amendment) Act is unconstitutional, null, void and violative of Articles 14, 19(1)(g), 21, 31(1) and (2) of the Constitution. 22. Mr Harish Salve, the learned senior counsel contended that Articles 291 and 362 when incorporated were intended to grant recognition to the solemn promises on the strength of which the former Rulers agreed to merge with the Indian Dominion and the guarantee of privy purses and certain privileges was as a just quid pro quo for surrendering their sovereignty and dissolving their States. It has been stated that the constitutional guarantees and assurances promising continuance of privy purse as enshrined in the Agreements and Cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of the privy purses, privileges etc. contained in the above three articles were, in fact, the reflections of the aforesaid virtues of the Constitution-makers which are the very virtues which characterized the personality of the Indian Constitution and that the Objects and Reasons of the impugned Amendment clearly establish the mala fides of the Amendment. 25. Mr A.K. Ganguly, the learned senior counsel appearing in I.A. No. 3 of 1992 in W.P. No. 351 of 1972 pointed out that after the Articles 291, 362 and 366(22) were adopted by the Constituent Assembly of India on 12th, 13th, 14th and 16th of October 1949, Maharaja of Mysore then issued a proclamation on November 25, 1949 to the effect that the Constituent Assembly of Mysore and Maharaja adopted the Constitution of India which would be as passed and adopted by the Constituent Assembly of India. On the following day, namely, November 26, 1949 the Constituent Assembly adopted the Constitution of India. Thereafter, on January 23, 1950, Maharaja of Mysore executed the Merger Agreement with the Government of India. The learned counsel after giving a brief history of the merger of the princely States, stated that the fact that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur, the learned senior counsel appearing for the petitioner in Writ Petition No. 798 of 1992 besides adopting the argument advanced in Writ Petition No. 351 of 1972 added that these two articles were not at all amendable on the principle of prohibition against impairment of the contract obligations, a principle recognised in Section 10, Article 1 of the Constitution of the United States of America. The same principle is incorporated in the Indian Constitution in the shape of Articles 362 and 291. According to the learned counsel, the impugned Amendment Act is an ugly epitome of immorality perpetrated by the Indian Parliament, that too, in the exercise of its constituent powers and the said Amendment Act constitutes an unholy assault on the spirit which is impermissible and that the principles of justice, fairness and reasonableness are beyond the amending powers of the Parliament. He further stated that the equality clause as interpreted by this Court in various decisions is the most important and indispensable feature of the Constitution and destruction thereof will amount to changing the basic structure of the Constitution, and that the authority of the Parliament to amend the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse instead of the expression pension is due to historical reasons. The privy purse satisfies all the essential characteristics of a political pension...... Further it has been observed in the above case: ... it must be held that the amounts of the privy purse are not liable to attachment or sale in execution of the respondent s decree. 29. Before embarking upon a detailed discussion on the various facets of the contentions both factual and legal we shall deal with the recursive point with regard to the pre-constitutional Instruments of Accession, the Merger Agreements and the covenants which guaranteed the payment of privy purse and the recognition of personal privileges etc. and which agreements ultimately facilitated the integration of these States with the Dominion of India. 30. In 1947, India obtained independence and became a Dominion by reason of the Indian Independence Act of 1947. The suzerainty of the British Crown over the Indian States lapsed at the same time because of Section 7 of that Act. Immediately after, all but few of the Indian States acceded to the new Dominion by executing Instruments of Accession. The Instruments of Accession executed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made to (1) the Report of the Joint Select Committee on Indian Constitutional Reforms (1933-34), (2) the Report of the Expert Committee headed by Nalini Ranjan Sarkar, published in December 1947, (3) The Indian States Finances Enquiry Committee chaired by Sir T.T. Krishnamachari appointed on October 22, 1948, the recommendations of which, on further discussions with the representatives of the States and Union of States led to the conclusion that the responsibility for payment of the privy purses fixed under various covenants and agreements should be taken over by the Government and (4) the Report of the Rau Committee appointed in November 1948 under the chairmanship of Sir B.N. Rau. 34. Reverting to the cases on hand, Shri Raghunathrao Ganpatrao, the petitioner in Writ Petition No. 351 of 1972 executed a Merger Agreement as per the form of merger on February 19, 1948 and handed over the administration of the State on March 8, 1948. The petitioner was entitled to receive annually from the revenues of the States his privy purse of ₹ 49,720 as specified in the Merger Agreement (as amended by an Order of Government of India in 1956) free of taxes besides his personal privi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the requisite majority of not less than two-third members present as required by Article 368 and voting. Close on the heels of the said rejection, the President of India purporting to exercise his powers under clause (22) of Article 366 of the Constitution, signed an Order withdrawing recognition of all the Rulers in the country en masse. A communication to this effect was sent to all the Rulers in India who had been previously recognised as Rulers. 40. This Presidential Order de-recognising the Rulers was questioned in Madhav Rao Scindia v. Union of India2 by filing writ petitions under Article 32 of the Constitution challenging it as unconstitutional, ultra vires and void. An eleven-Judge Bench of this Court by its judgment dated December 15, 1970 struck down the Presidential Order being illegal, ultra vires and inoperative on the ground that it had been made in violation of the powers of the President of India under Article 366(22) of the Constitution and declared that the writ petitioners would be entitled to all their pre-existing rights and privileges including right to privy purses as if the impugned orders therein had not been passed. Here, it may be noted that Mitter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciples . It is significant to note that Article 31 was omitted by the Constitution (Fortyfourth Amendment) Act, 1978 w.e.f. June 20, 1979. 44. The impugned Constitution (Twenty-sixth) Amendment, 1971 Was passed by the Parliament and it received the assent of the President on December 28, 1971. By this Act, Articles 291 and 362 were omitted and Article 363-A was inserted under the title Recognition granted to Rulers of Indian States to cease and privy purses to be abolished . By the same Amendment Act, an amended new clause was substituted to the then existing clause (22). We have already reproduced Articles 291, 362 and the past and present clause (22) of Article 366. 45. After the impugned Twenty-sixth Amendment was brought into force w.e.f. December 28, 1971, the present Writ Petition No. 351 of 1972 was filed on August 24, 1972 for declarations that the Twenty-fourth, Twenty-fifth and Twenty-sixth Amendment Acts of 1971 are unconstitutional, invalid, ultra vires, null and void and that the petitioner continues to be entitled to the privy purse and to personal rights, privileges as a Ruler and for a writ or order directing the respondent to continue to pay privy purse to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder, Writ Petition No. 351 of 1972 is now before this Constitution Bench for determination of the constitutional validity of the Twentysixth Amendment Act in accordance with the law laid down in Kesavananda Bharati4. 50. Since the constitutional validity of the same Twentysixth Amendment Act is involved in Writ Petition No. 798 of 1992, it is also before this Bench along with Writ Petition No. 351 of 1972. 51. As regards the in built separate mechanism for amending the Constitution, Dr Ambedkar said, One can, therefore, safely say that the Indian federation will not suffer from the faults of rigidity or legalism. Its distinguishing feature is that it is a flexible federation. Dr Where in his Modem Constitutions has commended that it strikes a good balance by protecting the rights of the State while leaving remainder of the Constitution easy to amend . Our Constitution is an amendable one. In fact, till now seventy-two amendments have been brought about, the first of which being in 1951 i.e. within 15 months of the working of the Constitution. 5 Golak Nath v. State of Punjab, (1967) 2 SCR 762: AIR 1967 SC 1643 52. The first amendment was challenged in Sankari Prasad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons of the Twenty-Fourth Amendment, which read thus: Objects and Reasons In the Golak Nath case5 the Supreme Court reversed, by a narrow majority, its own earlier decisions upholding the power of Parliament to amend all parts of the Constitution including Part III relating to fundamental rights. The result of the judgment was that Parliament was considered to have no power to take away or curtail any of the fundamental rights even if became necessary to do so for the attainment of the objectives set out in the Preamble to the Constitution. The Act, therefore, amends the Constitution to provide expressly the Parliament power to amend any part of the Constitution. 1952 SCR 89: AIR 1951 SC 458 (1965) 1 SCR 933 : AIR 1965 SC 845 56. Thereafter, the Twenty-fifth Amendment Act was brought in 1971 which amended the Constitution to surmount the difficulties placed in the way of giving effect to the Directive Principles of State Policy by the interpretation of Article 31 of the Constitution in Rustom Cavasjee Cooper v. Union of India8, The said Act substituted clause (2) and inserted clause (2-B) to Article 31 and added Article 31-C. These amendment Acts, namely, Twenty-fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutional mandate under Article 291. The source of the obligation was in Article 291, and not in the covenants and the agreements. (emphasis supplied 60. So far as Article 362 is concerned, it has been held by majority of the Judges that the said article is plainly a provision relating to covenants within the meaning of Article 363 and a claim to enforce the rights, privileges and dignities 8 (1970) 1 SCC 248 : (1970) 3 SCR 530 under the covenants therefore, are barred by the first limb of Article 363 and a claim to enforce the recognition of rights and privileges under Article 362 are barred under the second limb of Article 363 and that the jurisdiction of the courts however, is not excluded where the relief claimed is founded on a statutory provision enacted to give effect to personal rights under Article 362. 61. The important question now that arises for our consideration is whether the Twenty-sixth Amendment Act, which completely omitted Articles 291 and 362 and inserted a new Article 363-A and also substituted a new clause (22) in place of its original clause of Article 366, has destroyed, damaged and altered the basic structure of the Constitution. 62. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rses and extinguish all rights, liabilities and obligations in respect of privy purses. Hence this Act. 67. We shall now deal with the dictum laid down in Kesavananda Bharati as regards the power vested in the Parliament and the limitations either express or implied or inherent therefore to amend the Constitution. 68. In Kesavananda Bharati4 the Supreme Court upheld the validity of the Twenty-fourth Amendment. Of the thirteen Judges, Shelat, Hegde, Grover Jaganmohan Reddy and Mukherjea, JJ. observed that the Twenty-fourth Amendment did no more than clarify in express language that which was implicit in the unamended Article 368 and it did not and could not add to the power originally conferred thereunder. Ray, J. said that the Twenty-fourth Amendment made explicit what the judgment in Sankari Prasad6 and the majority judgment in Sajjan Singh7 and the dissenting judgment in Golak Nath5 said, namely, that Parliament has the constituent power to amend the Constitution. Sikri, C.J. and Ray, Palekar, Khanna, Beg, Dwivedi, JJ. who also held the Twenty-fourth Amendment valid, said that under Article 368 Parliament can now amend every article of the Constitution. 69. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of amendment under Article 368. 71. We shall now examine the various arguments made on behalf of the petitioners and the interveners grouping all those submissions under separate and distinct topics. 72. One of the points urged in common before us is that the framers of the Constitution in their wisdom had thought it fit to incorporate the words ,guaranteed or assured in Article 291 which by their very plain meaning convey the intention of the framers of the Constitution guaranteeing or promising that the erstwhile Rulers of the States would be entitled to receive their privy purses from the revenues of the Union and that it would be free from all taxes. 73. As we have indicated above there were multiple sequence of events in the historical evolution which necessitated the Indian Rulers to enter into various agreements and ultimately to agree for integration of their States with the Dominion of India by dissolving the separate identity of their States and surrendering their sovereignty but reserving only their rights for privy purses and privileges. Though India was geographically regarded as one entity it was divided in as many as about 554 segments big and smal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral part of the constitutional scheme, the identity of the Constitution has been changed and its character has been fundamentally altered. The total repeal of these articles coupled with an express repudiation of the guarantees embodied therein has resulted in nullification of a just quid pro quo which were the essence of these guarantees. He has urged that the underlying purpose of doing justice to the Rulers has been subverted and breach of faith has been sanctioned. He based the above arguments on three decisions of this Court, namely, (1) Waman Rao v. Union of India9; (2) Bhim Singhji v. Union of India10 and (3) Madhav Rao Scindia v. Union of India2. 78. There has been a common recurrent argument that the impugned Amendment Act is beyond the constituent power of the Parliament since it has damaged the basic structure and essential features of the Constitution. 79. Mr D.D. Thakur in addition to the above has stated that one of the tests to determine whether the provision of the Constitution was intended to be permanent or could be deleted or amended is to see whether the Constitution-makers had intended that to be permanent. In support of his submission, he placed much r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of a Constitution becomes ultra vires if the same contravenes or transgresses the limitations put on the amending power because there is no touchstone outside the Constitution by which the validity of the exercise of the said powers conferred by it can be tested. 86. In our Constitution, there are specific provisions for amending the Constitution. The amendments had to be made only under and by the authority of the Constitution strictly following the modes prescribed, of course subject to the limitations either inherent or implied. The said power cannot be limited by any vague doctrine of repugnancy. There are many outstanding interpretative decisions delineating the limitations so that the constitutional fabric may not be impaired or damaged. The amendment which is a change or alteration is only for the purpose of making the Constitution more perfect, effective and meaningful. But at the same time, one should keep guard over the process of amending any provision of the Constitution so that it does not result in abrogation or destruction of its basic structure or loss of its original identity and character and render the Constitution unworkable. The court is not concerned wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a challenge to the Ordinance which sought to render nugatory certain rights guaranteed in the Constitution, then existing. It is further stated that the attack on the Twenty-sixth Amendment based on the principles laid down in Madhav Rao2 is totally misconceived because only in order to overcome the effect of that judgment, the Twenty-sixth Amendment was passed by the Parliament in exercise of its constituent powers. According to the Attorney General, the observations in the said case were nullified by the Amendment and that judgment is no longer good law after the Amendment. To test the Amendment on the basis of that judgment is impermissible and all the arguments based upon this case are, therefore, misconceived. 90. In this context, it becomes necessary to recall certain events which ultimately gave rise to Madhav Rao case2. 91. After the commencement of the Constitution, in pursuance of Article 366(22), the Rulers were recognised and they had been enjoying the privy purses, privileges, dignities etc. on the basis of the relevant constitutional provisions. Pursuant to the resolution passed by the All India Congress Committee in 1967, the Union of India introduced the Twenty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Presidential Order, the Rulers were deprived of their privy purses and other privileges while keeping Articles 291 and 362 intact in the Constitution. Indeed, the said Presidential Order was issued after the Government failed in its attempt to effect an amendment on those lines. It is in that connection that the learned Judge made the above observations. It is clear that the learned Judge used the words integral part in their ordinary connotation not in any lexicographical sense. Ordinarily speaking, integral means of a whole or necessary to the completeness of a whole and as forming a whole (Concise Oxford Dictionary). Our Constitution is not a disjointed document. It incorporates a particular socioeconomic and political philosophy. It is an integral whole. Every provision of it is an integral part of it even the provisions contained in Part XXI Temporary, Transitional and Special Provisions . One may ask which provision, which concept or which institution in the Constitution is not an integral part of the Constitution? He will not find an answer. To say that a particular provision or a particular institution or concept is an integral part of the Constitution is not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in exercise of its constituent power. The repudiation of the right to privy purse privileges, dignities etc. by the deletion of Articles 291 and 362, insertion of Article 363-A and amendment of clause (22) of Article 366 by which the recognition of the Rulers and payment of privy purse are withdrawn cannot be said to have offended Article 14 or 19(g) [sic 19(1)(f) and we do not find any logic in such a submission. No principle of justice, either economic, political or social is violated by the Twenty-sixth Amendment. Political justice relates to the principle of rights of the people, i.e. right to universal suffrage, right to democratic form of Government and right to participation in political affairs. Economic justice is enshrined in Article 39 of the Constitution. Social justice is enshrined in Article 38. Both are in the directive principles of the Constitution. None of these rights are abridged or modified by this Amendment. We feel that this contention need not detain us any more and, therefore, we shall pass on to the next point in debate. 97. A serious argument has been advanced that the privy purse was a just quid pro quo to the Rulers of the Indian States for surren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unionization in the words of Sardar Patel, was undertaken step by step at various stages, multiple forces, such as political, economic and geographic, more so the democratic movement within the States accelerated the process of integration. Therefore, it is a misnomer to say that the Rulers made their sacrifices for which they were given just compensation and assured permanent payment of privy purses. What was given to the Rulers was a political pension as rightly pointed out in Usmanali case on consideration of their past position. Hence there is no question of breaking of solemn pledges or breach of promises etc. given to the Rulers. Therefore, the repudiation of the same cannot be said to have amounted to any breach of those guarantees and promises resulting in alteration of the basic structure of the Constitution. 99. Mr D.D. Thakur has submitted that the Twenty-sixth Amendment is an ugly epitome of immorality perpetrated by the Indian Parliament, that too in the exercise of its constituent powers and that the justice, fairness and reasonableness is the soul, spirit and the conscience of the Constitution of India as framed originally and that the impugned Amendment Act c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfused by an invitation to refuse the title of law or valid to them. They thought that, to confront these problems, simpler, more candid resources were available, which would bring into focus far better, every relevant intellectual and moral consideration: we should say, This is law; but it is too iniquitous to be applied or obeyed . It was pointed out at the beginning of this chapter that the principal call for a positivist concept of law is to identify laws precisely for the practical purposes of the present and that, for the limited purpose, it is desirable to separate the is from the ought . To accomplish this no more would appear to be needed than simply those uses of the word law by courts; which is akin to Salmond s definition alluded to above. Professor Hart s concept, however, is of legal system , which is a continuing phenomenon.... When Professor Hart thinks in a continuum, as he does with society, he has to bring in morality; but in order to defend positivism he shifts ground and takes refuge in the present time-frame, for only in this way can he justify the exclusion of morality for the purpose of identifying laws here and now. There would thus appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the above submissions. In the present case, there is no question of change of identity on account of the Twentysixth Amendment. The removal of Articles 291 and 362 has not made any change in the personality of the Constitution either in its scheme or in its basic features, or in its basic form or in its character. The question of identity will arise only when there is a change in the form, character and content of the Constitution. In fact, in the present case, the identity of the Constitution even on the tests proposed by the counsel of the writ petitioners and interveners, remains the same and unchanged. 108. Mr R.F. Nariman has contended that by removing the real and substantial distinction between the erstwhile Princes forming a class and the rest of the citizenry of India the constitutional amendment has at one stroke violated the basic structure of the Constitution as reflected both in Articles 14 and 51(c) and treated unequals as equals thereby giving a go-by to a solemn treaty obligation which was sanctified as independent constitutional guarantee. He has drawn strength in support of his above argument from the decisions in Md. Usman v. State of A. P. 19 and Ramesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o what is conferred on the States and that for minorities, special provisions are made under Article 30. Besides Articles 25 and 26 are meant to safeguard the minorities and religious denominations. The persons to determine the injury will be those for whom these provisions were made and whose interests are prejudiced. According to him, in such a circumstance the assurances and guarantees given under Articles 291 and 362 which are the Magna Carta assuring the Rulers of their preexisting rights cannot in any way be destroyed. We do not think that the aforesaid special provisions have any relevance herein. 111. As repeatedly pointed out supra, the only question is whether there is any change in the basic structure of the Constitution by deletion of Articles 291, 362 and by insertion of Article 363-A and amendment of clause (22) of Article 366. We have already answered this question in the negative observing that the basic structure or the essential features of the Constitution is/are in no way changed or altered by the impugned Amendment Act. We cannot make surmises on ifs and buts and arrive at any conclusion that Articles 291 and 362 should have been kept intact as special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in an independent India the existence of princely States was an anachronism in the body politic. Neither the past history nor economic and administrative realities could justify the existence of a multitude of autonomous islands. They had to be integrated with the rest of Indian Union to forge the unity of the country. After the withdrawal of British power the paramountly lapsed to the princes. They could decide either to join India or Pakistan or even to stay independent. Sardar Vallabhbhai Patel, the architect of Indian unity and the master builder of destiny of nationalist India brought the princely States into the Indian Union by means of judicious threats of force, appeals to patriotism, warnings of anarchy and diplomatic persuasion. An invitation was extended to all the Rulers of the States to work through the Councils of Constituent Assembly for the common good of all. 119. This invitation was accepted on May 19, 1949. 120. On this the White Paper says at page 109: As the States came closer to the Centre it became clear that the idea of separate Constitutions being framed for different constituent units of the Indian Union was a legacy from the Rulers polity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Indian people built on the concept of the sovereignty of the people.... All the citizens of India, whether residing in States or Provinces, will enjoy the same fundamental rights and the same legal remedies to enforce them. In the matter of their constitutional relationship with the Centre and in their internal set-up, the States will be on a par with the Provinces. The new Constitution therefore finally eradicates all artificial barriers which separated the States from Provinces and achieves for the first time the objective of a strong, united and democratic India built on the true foundations of a cooperative enterprise on the part of the peoples of the Provinces and the States alike. 124. The Princes were first stripped of their three vital functions defence, foreign affairs and communications. They were then urged to transfer internal government to popular movements inside their respective States. In recompense they were allowed to retain their titles, dignities and immunities and were given generous privy purses. It was in this context Articles 291 and 362 were brought into the Constitution. 125. Likewise, Article 366(22) defined the Ruler . 126. On Septemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n force- (a) the Prince, Chief or other person who, at any time before the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, was recognised by the President as the Ruler of an Indian State or any person who, at any time before such commencement, was recognised by the President as the successor of such Ruler shall, on and from such commencement, cease to be recognised as such Ruler or the successor of such Ruler; 366. (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. (b) on and from the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, privy purse is abolished and all rights, liabilities and obligations in respect of privy purse are extinguished and accordingly the Ruler or, as the case may be, the successor of such Ruler, referred to in clause (a) or any other person shall not be paid any sum as privy purse. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers to be brought within the fold of the Constitution as laid down by this Court in Madhav Rao case2. Without the accession of the Rulers the Constitution would have been basically different. Equally, the territory of India, its population, the composition of the State Legislatures and Assemblies and the Lok Sabha and Rajya Sabha would be radically different. 136. The learned counsel seeks to emphasise the nature and the character of guarantees contained in Articles 291 and 362. When they came to be incorporated it was nothing more than the statutory recognition to the solemn promises held out by Government of India. In order to secure a truly democratic form of Government in the united independent India these solemn promises were meant to be honoured. They were intended to incorporate a just quid pro quo for surrender by them of their authority and powers and dissolution of their States. 137. By repeal of these articles it has resulted in nullification of a just quid pro quo. The underlying purpose of doing justice to the Rulers has been subverted. Breach of faith has been sanctioned. Consequently, the character and personality of the Constitution have been changed from one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel cites cases dealing with equality as Ajay Hasia v. Khalid Mujib Sehravardi 21, Minerva Mills Ltd. v. Union of India3 and Kasturi Lal Lakshmi Reddy v. State of J K16. 143. In any event, privy purse is property. If the petitioner is deprived of the same, it is unfair and is violative of basic structure. Even from that point of view, the amendment cannot be supported. 144. Mr A.K. Ganguli, learned counsel on behalf of the intervenor in I.A. No. 3 of 1992 in W.P. 351 of 1972 would submit that under Article 291 of the Constitution, payment of any sum has been guaranteed or assured. This guarantee is of great importance. The guarantee would mean continuity of provision. Article 32(4) also contains the word guarantee . The same meaning must be ascribed to guarantee under Article 291. 145. It is not without purpose that the privy purse is charged upon the Consolidated Fund of India as seen from Article 112(g). In this connection, reference may be made to O.N. Mohindroo v. District Judge, Delhi22. As to what would constitute the basic structure, could be gathered from Kesavananda Bharati case4 particularly, the passages occurring at paras 582-83, 631, 632, 1159 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivy purses. Such a guarantee can always be revoked in public interest; more so, for fulfilling a policy objective or the directive principles of the Constitution. This is precisely what the preamble to the impugned Amendment says. That being so, the theory of sanctity of contract or the unamendability of Article 291 or 362 does not have any foundation. The theory of political justice is also not tenable since political justice means the principle of political equality such as adult suffrage, democratic form of Government, etc. 152. The treaties/covenants/etc. entered into between the Union of India and the Rulers were as a result of political action. No justiciable rights were intended to be created. Article 363 as it stood in its original form spells out this proposition. The rights and privileges in the articles prior to the Twenty-sixth Amendment were as acts of State of the Government and not in recognition of the sacrifices of the Rulers. By no means, can it be contended that these guarantees given to the Rulers were ever intended to be continued indefinitely. 153. Turning to basic feature, the proper test for determining basic feature is to find out what are not basic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Part III of the Constitution, a machinery is available for the enforcement. On the contrary, such a machinery for enforcement of privy purses is not available under Article 363. Therefore, it is submitted that it is an inferior right than the fundamental right. Hence, it cannot be called a basic structure at all. As to what is the meaning 161. The learned Attorney General also draws our attention to an article of K. Subba Rao, Ex-Chief Justice of India entitled as The Two Judgments: Golaknath and Kesavananda Bharati .+ 162. As to the morality part of the impugned Amendment, it is urged that there is nothing immoral about it. Where the changed situation and anxiety to establish an egalitarian society require the change of law it is valid. 163. In reply to these submissions, Mr Soli J. Sorabjee would contend that the submissions of learned Attorney General that the guarantees under Articles 291 and 362 are unenforceable in view of Article 363 are not tenable in view of the judgment of this Court in Madhav Rao case2. 164. It is also not correct to argue that it is an act of State and therefore, no relief can be granted in respect of matters covered by it. Such a submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sic structure. (iv) It is not moral. Background 168. In order to appreciate the above points, it is necessary to set out the background in which the articles came to be incorporated in the Constitution. It was on July 5, 1947, Sardar Vallabhbhai Patel exhorted as under: This country, with its institutions, is the proud heritage of the people who inhabit it. It is an accident that some live in the States and some in British India, but all alike partake of its culture and character. We are all knit together by bonds of blood and feeling no less than of self-interest. None can segregate us into segments; no impassable barriers can be set up between us. I suggest that it is, therefore, better for us to make laws sitting together as friends than to make treaties as aliens. I invite my friends, the Rulers of States and their people to the Councils of the Constituent Assembly in this spirit of friendliness and cooperation in a joint endeavour, inspired by common allegiance to our motherland for the common good of us all. We are at a momentous stage in the history of India. By common endeavour, we can raise the country to a new greatness while lack of unity will expose us t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be incorporated in the Constitution has already been set out. At this stage, what requires emphasis is that the people brought about the integration of the States with the erstwhile British India which came to be freed from the foreign yoke. This is very clear from the speech of Sardar Vallabhbhai Patel on November 13, 1947 quoted above. 171. It was in recognition of the privileges and powers which existed hitherto the privy purses came to be conferred. The articles assured the payment of privy purses. Nature of Privy Purse 172. What exactly is a nature of privy purse in the realm of law could be gathered from Usmanali Khan case at page 206 as under: The third contention of Mr Pathak raises the question whether an amount payable to a Ruler of a former Indian State as privy purse is a political pension within the meaning of Section 60(1)(g), Code of Civil Procedure. The word pension in Section 60(1)(g), Code of Civil Procedure implies periodical payments of money by the Government to the pensioner. See Nawab Bahadur of Murshidabad v. Kamani Industrial Bank Ltd. 25 and in Bishambhar Nath v. Nawab Imdad Ali Khan26 Lord Watson observed: A pension which the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marriage and other ceremonies and neither be increased nor reduced for any reason whatsoever. Article XI(3) provided that the Rajpramukh would cause the amount to be paid to the Ruler in four equal instalments at the beginning of each quarter in advance. Article XI(4) provided that the amount would be free of all taxes whether imposed by the Government of the United State or by the Government of India. Article XIII of the Covenant secured to the Ruler of each Covenanting State all personal privileges, dignities and titles then enjoyed by them. Article XIV guaranteed the succession, according to law and custom, to the gaddi of each Covenanting State and to the personal rights, privileges, dignities and titles of the Ruler. The Covenant was signed by all the Rulers of the Covenanting State. At the foot of the Covenant, it was stated that The Government of India hereby concur in the above 25 (1931) 58 IA 215, 219, 220: AIR 1931 PC 160 26 (1890) 17 IA 181, 186: ILR 18 Cal 216 Covenant and guarantee all its provisions. In confirmation of this consent and guarantee, the Covenant was signed by a Secretary to the Government of India. On the coming into force of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action in any municipal courts. The guarantee given by the Government of India was in the nature of a treaty obligation contracted with the sovereign Rulers of Indian States and cannot be enforced by action in municipal court.- F. Its sanction is political and not legal. On the coming into force of the Constitution of India, the guarantee for the payment of periodical sums as privy purse is continued by Article 291 of the Constitution, but its essential political character is preserved by Article 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 as privy purse under Article 291. Now, the periodical payment of money by the Government to a Ruler of a former Indian State as privy purse on political considerations and under political sanctions and not under a right legally enforceable in any municipal court is strictly a political pension within the meaning of Section 60(1)(g) of the Code of Civil Procedure. The use of the expression privy purse instead of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law including this Court. 175. Further, at page 193 of the said decision, it is held: (SCC p. 196, para 228) The learned Judges in that case had no occasion to consider nor did they go into the scope of Article 291 or Article 363. Every observation of this Court is no doubt, entitled to weight but an obiter cannot take the place of the ratio. 27 (1969) 3 SCC 150: (1970) 2 SCR 631 176. A careful reading of the above shows what is overruled is the political character and not that the privy purse is not a political pension. Even otherwise, if really this dictum has been overruled, the very basis of the judgment of Usmanali Khan case would disappear. Then the reasoning in relation to the attachability under Section 60 of Code of Civil Procedure would be incorrect. Be that so, what is argued by Mr Soli J. Sorabjee is that the guarantee under Article 291 is enforceable notwithstanding Article 363. Therefore, this discussion need not detain us. As to the scope of Article 363, it could be culled from Madhav Rao case 2 at page 99: A dispute as to the right to receive the privy purse, is therefore not a dispute arising out of the covenant within the first limb of Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the legislature, the executive and the judiciary; (5) Federal character of the Constitution. The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed. The above foundation and the above basic features are easily discernible not only from the preamble but the whole scheme of the Constitution, which I have already discussed. 181. Shelat and Grover, JJ. in the said judgment stated at page 280 as under: (SCC p. 454, para 582) The basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are unfounded. If the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure. (These cannot be cataloged but can only be illustrated): (1) The supremacy of the Constitution. (2) Republican and Dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul consideration of the various aspects of the case, we are convinced that the Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our polity, the unity of the country, the essential features of the individual freedoms secured to the citizens. Nor has the Parliament the power to revoke the mandate to build a Welfare State and egalitarian society. 184. Jaganmohan Reddy, J. in the said judgment stated at page 517 as under: (SCC p. 637, para 1159) I will now consider the question which has been strenuously contended, namely, that there are no essential features, that every feature in the Constitution is essential, and if this were not so, the amending power under the Constitution will apply only to non-essential features which it would be difficult to envisage was the only purpose of the framers in inscribing Article 368 and that, therefore, there is no warrant for such a concept to be read into the Constitution. The argument at first flush is attractive, but if we were to ask ourselves the question whether the Constitution has any structure or is structur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the essential features. Two difficulties arise, who is to decide what are essential provisions and non-essential provisions? According to Mr Palkhivala it is the court which should do it. If that is correct, what stable standard will guide the court in deciding which provision is essential and which is not essential? Every provision, in one sense, is an essential provision, because if a law is made by the Parliament or the State Legislatures contravening even the most insignificant provision of the Constitution, that law will be void. From that point of view the courts acting under the Constitution will have to look upon its provisions with an equal eye. Secondly, if an essential provision is amended and a new provision is inserted, which in the opinion of the constituent body, should be presumed to be more essential than the one repealed, what is the yardstick the court is expected to employ? It will only mean that whatever necessity the constituent body may feel in introducing a change in the Constitution, whatever change of policy that body may like to introduce in the Constitution, the same is liable to be struck down if the court is not satisfied either about the necessity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve yet to learn from what source this limitation arises. Is it because the people who were supposed to have framed the Constitution intended it and embodied the intention in an unalterable framework? If this is so, it would raise the fundamental issue whether that intention should govern the succeeding generations for all time. If you subscribe to the theory of Jefferson, to which I have already referred and which was fully adopted by Dr Ambedkar, the principal architect of our Constitution and that is the only sane theory I think there is no foundation for the theory of implied limitations. Were it otherwise, in actual reality it would come to this: The representatives of some people the framers of our Constitution could bind the whole people for all time and prevent them from changing the constitutional structure through their representatives. And, what is this sacredness about the basic structure of the Constitution? Take the republican form of government, the supposed cornerstone of the whole structure. Has mankind, after its wandering through history, made a final and unalterable verdict that it is the best form of government? Does not history show that mankind has changed its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curring under Article 32(4) have been provided? Preamble vis-a-vis Object of Amendment 190. In Indira Nehru Gandhi case I the following observations are found in para 663: (SCC pp. 252-53, para 665) The preamble, generally, uses words of passion and power in order to move the hearts of men and to stir them into action. Its own meaning and implication being in doubt, the preamble cannot affect or throw light on the meaning of the enacting words of the Constitution. Therefore, though our preamble was voted upon and is a part of the Constitution, it is really a preliminary statement of the reasons which made the passing of the Constitution necessary and desirable. As observed by Gajendragadkar, J. in Berubari Union and Exchange of Enclaves, Re28 what Willoughby has said about the preamble to the American Constitution, namely that it has never been regarded as the source of any substantive power, is equally true about the prohibitions and limitations. The preamble of our Constitution cannot therefore be regarded as a source of any prohibitions or limitations. 191. Therefore, regard must be had to the scope of the preamble which states:, The concept of Rulership, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ralie Mullin v. Administrator, Union Territory of Delhi3O succinctly states the law on this aspect as under: Time works changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider application than mischief which gave it birth. This is peculiarly true of Constitutions. They are not ephemeral enactments designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, designed to approach immortality as nearly as human institutions can approach it . The future is their care, and provisions for events of good and bad tendencies of which no prophecy can be made. In the application of a Constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a Constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in the words might be lost in reality. And this has been recognised. The meaning and vitality of the Constitution have developed against narrow and destructive constructi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal of their arguments. 197. In the words of the famous poet James Russell Lowell: New occasions teach new duties: Time makes ancient good uncouth: They must upward still, and onward, who would keep abreast of Truth. 198. No doubt, unity and integrity of India would constitute the basic structure as laid down in Kesavananda Bharati case4 but it is too far-fetched a claim to state that the guarantees and assurances in these articles have gone into the process of unification and integration of the country. One cannot lose sight of the fact that it was the will of the people and the urge to breathe free air of independent India as equal citizens that brought about the merger of these princely States. Therefore, the contention that the Articles 291 and 362 facilitated the organic unity of India is unacceptable. Violation of Article 14 199. Next as to the violation of Article 14, it is true as laid down in Bhimsinghji case10 that if a particular provision of a Constitution violates Article 14, it would affect the basic structure of the Constitution. This case dealt with the validity of Section 27(1) of the Urban Land (Ceiling and Regulation) Act, 1976. The rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ached cannot arise when we examine the vires of an ordinary legislation as distinguished from a constitutional amendment. Kesavananda Bharati4 cannot be the last refuge of the Proprietaries when benign legislation takes away their excess for societal weal. Nor, indeed, can every breach of equality spell disaster as a lethal violation of the basic structure. Peripheral inequality is inevitable when large-scale equalisation processes are put into action. If all the judges of the Supreme Court in solemn session sit and deliberate for half a year to produce a legislation for reducing glaring economic inequality their genius will let them down if the essay is to avoid even peripheral inequalities. Every large cause claims some martyr, as sociologists well know. Therefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. If a legislation does go that far it shakes the democratic foundation and must suffer the death penalty. But to permit the Bharati4 ghost to haunt the corridors of the court brandishing fatal writs for every feature of inequality is judicial paraly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns having to do as much with property as with theological morality). The statutory abolition of the crime of suicide in its turn buttressed and affirmed the moral attitude. The second part questions whether law necessarily refers to morality at all; do morals and law overlap in practice, simply because both share the common vocabulary of rights and duties? It is here that the natural lawyers and legal positivists have engaged most fiercely in controversy. The antagonists have found temporary refuge in the sterile argument about whether law is open to moral criticism. Can a rule of law, properly derived (in constitutional terms) to be held to conflict with some moral principle? Those who witnessed Parliament, through the vehicle of the War Damage Act 1965 reversing retrospectively the House of Lords decision in Burmah Oil Co. v. Lord Advocate and thus depriving a large corporation of its fruits of litigation, would acknowledge readily the dissociation of law and political, if not social, morality. In any event, does it matter that the law is immorally enacted, if we are all bound by it? Its enforceability (if not its actual enforcement) is unlikely to be affected by such t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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