Ganpatrao Vs. Union of India  INSC 58 (4 February 1993)
S.R. (J) Pandian, S.R. (J) Sharma, L.M. (Cj) Mohan, S. (J) Jeevan Reddy, B.P.
(J) Bharucha S.P. (J)
1993 AIR 1267 1993 SCR (1) 480 1994 SCC Supl. (1) 191 JT 1993 (1) 374 1993
Judgments of the Court were delivered by S. RATNAVEL PANDIAN, J. (on behalf of
L. M. Sharma, C J., himself and B. P. Jeevan Reddy and S.P. Bharucha, JJ.)-
These two writ petitions call in question the constitutional validity of the
Constitution (Twenty-sixth Amendment) Act, 1971 inter alia, on the ground that
it violates the basic structure and essential features of the Constitution of
India and is, therefore, outside the scope and ambit of constituent powers of
the Parliament to amend the Constitution as provided under Article 368 of the
Constitution. In addition, certain directions or suitable orders are sought for
declaring that the petitioners continue to be the Rulers or the 'Successor
Rulers', as the case may be and directing the respondent-Union of India to
continue to recognise their personal rights, amenities and privileges as Rulers
of their erstwhile 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.
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.
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.
instrument was accepted by the Governor General of India and the State thus became a part of
the Dominion of India. Likewise, Rulers of most of the other Indian States also
executed similar instruments which were accepted by the Governor General. By
the said instrument, the petitioner accepted the matters specified in the
schedule thereto as matters with respect to which the Dominion Legislature may
make laws for the State and declared his intent that the Governor General of
India, the Dominion Legislature, the Federal Court and any other Dominion
authority established for the purposes of the Dominion shall, subject to the
terms of the instrument, exercise in relation to the Kurundwad State such
functions as may be vested in them by the Government of India Act, 1935 as in
force in the Dominion of India on August 15, 1947. According to the petitioner,
clause 7 of the Instrument provided that nothing therein shall be deemed to
commit the Ruler in anyway to acceptance of any future Constitution of India or
to fetter his discretion to enter into agreements with the Government of India
under any such future Constitution. Subsequently, a number of Rulers executed
Agreements of Merger and transferred the administration of their States to the
Dominion Government. The Merger Agreement was in the form given in the 'White
Paper on Indian States' and it was executed on February 19, 1948. Then the administration of the State of the petitioner was
handed over on March 8,
case of the petitioner is that under the Merger Agreement he was entitled to
receive annually from the revenues of the State his privy purse as specified in
the Merger Agreement (as amended by an order of Government of India in 1956)
free of taxes, besides reserving his personal rights, privileges and dignities.
groups of States entered into covenants for the establishment of United States comprising the territories of the
covenanting States and Talukas with a common executive, legislature and
judiciary. The covenants inter alia provided for the administration of United States by a Rajpramukh aided and advised
by a Council of Ministers.
also envisaged the establishment of a Constituent Assembly charged with the
duty to frame Constitution for the United States within the framework of covenants and of the Constitution
of India. Each of the covenants was concurred in by the Government of India
which guaranteed all its provisions including provisions relating to the privy
purse, 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.
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 States and other States which had not merged were also
adopted and these States were called Part 'B' States. The Rulers and Rajpramukhs
of the States agreed to adopt the Constitution as drafted by the Constituent
Assembly of India and issued proclamations directing that the Constitution to
be adopted by the Constituent Assembly of India shall be the Constitution for
the United States.
covenants were also executed by the covenanting States which covenants were
concurred in and guaranteed by the Government of India. Thereafter, the
Constituent Assembly passed and adopted the Constitution.
to the petitioner, it was only on the basis of the Constituent Assembly's
acceptance of the provisions of Articles 291, 362 and clause (22) of Article
366 that the Rulers adopted the Constitution of India in relation to their
States. After the commencement of the Constitution of India and in pursuance of
Article 366(22) thereof the petitioner was recognised as the Ruler of the Kurundwad State with effect from January 26, 1950 and had been in the enjoyment of
the privy purse, privileges, titles and dignities issued by Merger Agreement
and by the Constitution of India. While it was so, the Parliament enacted new
Acts - namely, the Constitution (Twenty-fourth Amendment) Act, 1971, the
Constitution (Twenty-fifth Amendment) Act, 1971 and the Constitution
(Twenty-sixth Amendment) Act, 1971, the last of 199 which received the assent
of the President on December
28, 1971. By this Act,
Articles 291 and 362 of the Constitution were repealed and a new Article 363-A
was inserted, resulting in depriving the Rulers of the recognition already
accorded to them and declaring the abolition of the privy purse and
extinguishing their rights and obligations in respect of privy purses and new
clause (22) to Article 366 was substituted. Therefore, the petitioner is now
challenging the impugned Amendment Act as unconstitutional and violative of the
fundamental rights of the petitioner guaranteed under Articles 14, 19(1)(f), 21
and 31 (1) and (2) of the Constitution.
this writ petition, I.A. Nos. 1 to 3 of 1992 have been filed by Smt Kamakshidevi
Yavaru, Smt Vishalakshideviyaru and Smt Indrakshi Devi, daughters of late
Maharaja of Mysore.
petitioner in Writ Petition No. 798 of 1992 is the successor to the late His
Highness Shri Jaya Chamaraja Wadiyar, Ruler of Mysore 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.
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 of the power of Parliament acting as a constituent body under
Article 368 of the Constitution inasmuch as it not only sought to amend the
Constitution but also destroy the basic philosophy, personality, structure and
feature of the Constitution.
Though it is not necessary to narrate in detail the historical events leading
to the transfer of power and the integration of Indian States consequent upon
the political and constitutional changes, yet a prefatory note of the past
historical background may be stated so as to have a better understanding of the
policy step taken for the integration of the States in terms of the
consolidation of the country.
Though India is geographically one entity yet
throughout its long and past chequered history it never achieved political
homogeneity. There were about 554 States (subject to a marginal variation as
found in various Reports), out of which the States of Hyderabad and Mysore were left territorially untouched.
Two hundred and sixteen States were merged in the adjoining provinces in which
they were situated, or to which they were contiguous. Five were taken over
individually as Chief Commissioner's provinces under the 200 direct control of
the Government of India besides twenty-one Punjab Hill States which comprised Himachal
Pradesh. Three hundred and ten were consolidated into six Unions, of which Vindhya
Pradesh was subsequently converted into a Chief Commissioner's province. Thus,
as a result of integration, in the place of 554 States, fourteen administrative
units had emerged. This was a physical or geographical consolidation.
The next step was to fit all these units into a common administrative mould.
Administration in the erstwhile States was in varying stages of development
and, with a few exceptions it was both personal and primitive. Such States
being Mysore, Baroda, Travancore and Cochin could stand comparison with their neighboring provinces and in some
respects were ahead of them. But there were smaller States where, owing mainly
to the slenderness of their resources, the Rulers were not in a position to
discharge even the elementary functions of government. Between these two
extremes, there were several States with administrative systems of varying
degrees of efficiency.
the past, the comparative Indian area covered by the States was 48 per cent of
the total area of the Dominion of India, the relative population ratio of the
States was 28 per cent of the total population of the Dominion of India.
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 concerned and payments had so far been made accordingly. During the
course of the discussion with the Indian States Finances Enquiry Committee, it
was urged by most of the States that the liability for paying privy purses of
Rulers should be taken over by the Centre. Having regard to the various
factors, it was decided that the payments should constitute a charge on the
privy purses settlements, were, therefore in the nature of consideration for
the surrender by the Rulers of all the ruling powers and also for the
dissolution of the States as separate units.
is stated that the total amount of the privy purse came to about Rs 5.8 crores
per annum and the quantum of privy purse each year was liable to reduction with
every generation. According to V.P. Menon, who was the Constitutional Advisor
to the Governor General till 1947 and then the Secretary to the Ministry of
States and closely connected with the annexation of the princely States
"the price paid as Privy Purses was not too high for integration and
indeed it was insignificant when compared with what the Rulers had lost".
He pointed out that "the cash balances were to the tune of Rs 77 crores
and that palaces in Delhi alone were worth several lakhs of
is appropriate to refer to the speech of Sardar Vallabhbhai Patel made on October 12, 1949 in the Constituent Assembly on the
Draft Constitution, on which reliance was placed by the writ petitioners. The
speech reads thus:
was nothing to compel or induce the Rulers to merge the identity of their
use of force would have not only been against our professed principles but would
have also caused serious repercussions. If the Rulers had elected to stay out,
they would have continued to draw the heavy civil lists which they were drawing
before and in large number of cases they could have continued to enjoy
unrestricted use of the State revenues.
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. We would
do well to remember that the British Government spent 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."
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:
Privy purse sums of Rulers.- (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 privy purse- (a) such sums shall be charged on, and paid out of, the
Consolidated Fund of India; and (b) the sums so paid to any Ruler shall be
exempt from all taxes on income.
Where the territories of any such Indian State as aforesaid are comprised
within a State specified in Part A or Part B of the First Schedule, there shall
be charged on, and paid out of, the Consolidated Fund of that State such
contribution, if any, in respect of the payments made by the Government of
India under clause (1) and for such period as may subject to any agreement
entered into in that behalf under clause (1) of Article 278, be determined by
order of the President.
Rights and privileges of Rulers of Indian States. In the exercise of the power
of Parliament or of the Legislature of a State to make laws or 202 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."
Clause (22) of Article 366 was amended by Section 4 of the impugned Act of
1971. We shall reproduce that clause as it stood then and the substituted
clause (present) consequent upon the amendment.
clause " '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."
Substituted or amended clause " 'Ruler' means 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
this connection, the new Article 363- A which has been inserted by Section 3 of
the impugned Amendment Act which is also relevant for our purpose may be
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;
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."
The submissions advanced by Mr Soli J. Sorabjee, the learned senior counsel
appearing on behalf of the writ petitioner in Writ Petition No. 351 of 1972 are
291, 362 and 366(22) of the Constitution were integral part of the
constitutional scheme and formed the important basic structure since the
underlying purpose of these articles was to facilitate stabilisation of the new
order and ensure organic unity of India. These articles guaranteed pledges to
the Rulers based on elementary principles of justice and in order to preserve
the sanctity of solemn agreements. It was only by the incorporation of these
articles 203 that the unity of India was achieved by getting all the Rulers
within the fold of the Constitution, and that the deletion of these articles
has damaged and demolished the very basic structure of the Constitution. The
covenants entered into were in the nature of contracts which had been
guaranteed constitutionally and affirmed by making the privy purse an
expenditure charged under the Consolidated Fund of India and the use of the
expressions "guaranteed or assured by the Government of the Dominion of
India to any Ruler" as embodied in Article 291 and the expression
"guarantee and assurance given under such covenants or agreements as is
referred to in clause (1) of Article 291..." as comprised in Article 362
were a permanent feature of the Constitution reflecting the intention of the
Founding Fathers of the Constitution and as such these two articles should have
been kept intact. According to the learned counsel, the deletion of these
articles amounted to a gross breach of the principle of political justice
enshrined in the Preamble by depriving or taking away from the princes the
privy purses which were given to them as consideration for surrendering all
their sovereign rights and contributing to the unity and integrity of the
country and that the deletion of these articles by the impugned Amendment Act
is arbitrary, unreasonable and violative of Article 14 of the Constitution.
Further it has been urged that the Rulers acceded to the Dominion of India and
executed Instruments of Accession and Covenants in consideration of the pledges
and promises enshrined in Articles 291 and 362 and that the impugned Amendment
Act is beyond and outside the scope and ambit of the constitutional power of
the Parliament to amend the Constitution as provided under Article 368 of the
Soli J. Sorabjee, the learned senior counsel in his additional 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
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
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 Covenants were
"an integral part of the constitutional scheme" and "an
important part of the constitutional structure" and they were to be fully honoured
and not cast away on a false morass of public opinion or buried under acts of
States, but the impugned Act, ex facie, has abolished and destroyed those
constitutional provisions of Articles 291 and 362 affirming the guarantees and
assurances given to the Rulers under those agreements. To highlight the
significance of those agreements whereby the Rulers were persuaded to sign the
instruments, 204 the statement of Shri V.P. Menon who was closely connected
with the annexation of the princely States and the speech of Sardar Vallabhbhai
Patel made in the Constituent Assembly were cited.
is further emphasised that Sardar Patel also made it clear that according to
the vision and views of the Constitution-makers, the guarantees of privy purse,
privileges etc., were perfectly in keeping with the democratic ethos and
principles of the Indian people. Then the learned counsel stated that the views
expressed in the Constituent Assembly were unanimously accepted and there was
no dissent and that in fact the closing remarks in the debate of Dr B. Pattabhi
Sitaramayya were not only remarkably confirmatory of the permanence and
indefeasibility of the aforesaid guarantees and assurances but also went a long
way in determining that the said guarantees and assurances have come to stay as
an integral and untouchable part of the basic structure of the Constitution.
it was said that there can be no basic structure of a Constitution divorced
from the historical evolution of the precepts and principles on which the
Constitution is founded. Any effort to determine the basic structure of the
Constitution without keeping a finger on the historical pulse of the
Constitution may well lead to substantial injustice. According to him, if the
historical approach to the test of basic structure is kept in view, the
guarantees and assurances of the privy purses, privileges, etc. granted by the
Constitution-makers by incorporating Articles 291, 362 and 366(22) in the
Constitution framed by them would, without any doubt or dispute, emerge in
their own rights ,as basic features' of the Constitution which cannot be
abrogated or annihilated by any constitutional amendment.
he finally concluded is that the guarantees and assurances 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.
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
the framers of the Constitution adroitly chose the words "guarantee or
assured" unequivocally conveys the intention of the framers of the
Constitution to continue the guarantee as per the covenants in their plain
counsel submitted that the fact that the expression "guaranteed"
occurring both in Article 32 and Article 291 besides in Article 362 ('guarantee')
clearly demonstrates the mind of the Constitution-makers that they intended the
said provisions of Articles 291 and 362 to be the basic and essential structure
of the Constitution. According to him, to preserve the sanctity of these
rights, the 205 framers of the Constitution chose to avoid voting in Parliament
on the amount to be paid as privy purses and keeping that object in their view,
they framed Article 291(1) reading "[s]uch sums shall be charged on and
paid out of the Consolidated Fund of India and that the said payments would be
exempted from all taxes on income". When such was the sanctity attached to
this guarantee, the impugned Amendment completely throwing away those
guarantees and assurances to the wind is palpably arbitrary and destructive of
the equality clause which is admittedly a basic feature of the Constitution.
R.F. Nariman, the learned counsel appearing in I.A. No. 1 of 1992 in Writ
Petition No. 351 of 1972 adopted the arguments of the other counsel and
contended that the erstwhile Rulers of the Princely States formed a class apart
in that there is a real and substantial distinction between them and the
citizenry of India. In this context, he referred to
Section 87-B of the Civil Procedure Code, 1908 which was introduced by way of
amendment after the Constitution came into force in the year 1951 and in order
to protect the erstwhile Rulers from frivolous suits filed against them in free
India after the Constitution came into force. This, according to learned
counsel, was legislative recognition in addition to the constitutional
guarantee contained in Articles 291 and 362 of the fact that the erstwhile
Princes formed a class apart. When such was the position, according to the
learned counsel, the impugned Amendment which violates the basic structure of
the Constitution is unconstitutional. He cited certain decisions in support of
his arguments that the Amendment Act is violative of the essential features
contained in Articles 14 and 19(1)(f).
D.D. Thakur, 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.
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
Constitution under Article 368 could be exercised only if the amendment in the
Constitution is justifiable and necessitated because of the socioeconomic
reasons broadly referred to in the Directive Principles of the State Policy and
that any amendment unrelated to any genuine compulsion amounts to an abuse of
the power and is therefore a fraud on the exercise of power itself.
The learned Attorney General of India with regard to the above pre-constitution
agreements stated that the history of the developments leading to the Merger
Agreements and the framing of the Constitution clearly show that it is really
the union of the people of the native States with the people of the erstwhile
British India and the Instruments of Accession were only the basic 206
documents but not the individual agreements with the Rulers and therefore to
attribute the agreements entered into by Rulers as a sacrifice by the Rulers is
unfounded. Secondly, the nature of the covenants is not that of a contract
because a contract is enforceable at law while these covenants were made non-justiciable
by the Constitution vide Article 363. ' According to him, the covenants were
political in nature and that no legal ingredients as the basis can be read into
these agreements and that the guarantees and assurances embodied in Articles
291 and 362 were guarantees for the payment of privy purses. He has urged that
such a guarantee can always be revoked in public interest pursuant to
fulfilling a policy objective or the directive principles of the Constitution. That
being so, the theory of sanctity of contract or unamendability of Articles 291
or 362 did not have any foundation. He continues to state that the theory of
political justice is also not tenable because political justice means the
principle of political equality such as adult suffrage, democratic form of
Government etc. In this context, he drew the attention of this Court to a
decision in Nawab Usmanali Khan v. Sagarmal1 wherein Bachawat, J. speaking for
the Bench has held:
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 the expression
'pension' is due to historical reasons. The privy purse satisfies all the
essential characteristics of a political pension......
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."
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.
1947, India obtained independence and became a
Dominion by reason of the Indian Independence Act of 1947.
suzerainty of the British Crown over the Indian States lapsed at the same time
because of Section 7 of that Act.
after, all but few of the Indian States acceded to the new Dominion by
executing Instruments of Accession.
Instruments of Accession executed by the Rulers provided for the accession of
the States to the Dominion of India on three subjects, namely, (1) Defence, (2)
External Affairs and (3) Communications, their contents being defined in List I
of Schedule VII of the Government of India Act, 1935.
accession did not imply any financial liability on the part of the acceding
This accession of the Indian States to the Dominion of India established a new
organic relationship between the States and the Government, the significance of
which was the forging of a constitutional link or relationship between the
States and the Dominion of India. The accession of the Indian States to the
Dominion of India was the first phase of the process of fitting them 1 (1965) 3
SCR 201 : AIR 1965 SC 1798 207 into the constitutional structure of India. The
second phase involved a process of twofold integration, the consolidation of
States into sizeable administrative units, and their democratization. Though
high walls of political isolation had been raised and buttressed to prevent the
infiltration of the urge for freedom and democracy into the Indian States, with
the advent of independence, the popular urge in the States for attaining the
same measure of freedom as was enjoyed by the people in the Provinces, gained
momentum and unleashed strong movements for the transfer of power from the
Rulers to the people. On account of various factors working against the
machinery for self-sufficient and progressive democratic set-up in the smaller
States and the serious threat to law and order in those States, there was an
integration of States though not in a uniform pattern in all cases. Firstly, it
followed the merger of States in the provinces geographically contiguous to
them. Secondly, there was a conversion of States into centrally administered
areas and thirdly the integration of their territories to create new viable
units known as Union of States.
Vallabhbhai Patel had a long discussion with the Rulers and took a very active
role in the integration of the States. As a result of the application of
various merger and integration schemes: (1) 216 States had been merged into
Provinces; (2) 61 States had been taken over as centrally administered areas;
and (3) 275 States had been integrated in the Union of States. Thus, totally
552 States were affected by the integration schemes.
Reference may 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.
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.
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 Rs 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 privileges, rights and the Dominion Government guaranteed
the succession according to law and custom of the Gaddi of the State and the
Raja's personal rights, privileges and dignities.
Jaya Chamaraja Wadiyar, father of the petitioner (Shri Srikanta Datta Narasimharaja
Wadiyar) in Writ Petition No. 798 of 1992 executed an Instrument of Accession
and entered into a Merger Agreement/Treaty on January 23, 1950.
the Merger Agreement, the Maharaja of Mysore was entitled to receive annually
for his privy purse the sum of Rs 26,00,000 (Rupees twenty-six lakhs) free of
all taxes w.e.f. April 1, 1950. Article (1) of the said Agreement contained a
proviso that the sum of Rs 26,00,000 was payable only to the then Maharaja of Mysore
for his lifetime and not to his successor for whom a provision would be made
subsequently by the Government of India.
Besides, the then Maharaja was entitled to the full ownership, use and
enjoyment of all his private properties (as distinct from State properties)
belonging to him on the date of the Agreement as specified under clause (1) of
Article (2) of the Agreement.
are not concerned about the particulars of the agreements executed by other
Rulers of various States.
While, it was so, in 1950 when the Constitution was enforced, it conferred upon
the Rulers the aforesaid guarantees and assurances to privy purse, privileges
etc. under Articles 291, 362 and 366(22) of the Constitution.
Rulers continued to enjoy the said benefits up to 1970.
May 14, 1970, the Constitution (Twenty-fourth Amendment) Bill, 1970 for
abolition of the above said privy purse, privileges etc. conferred under
Articles 291, 362 and 366(22) was introduced in the Lok Sabha by the then
Finance Minister, Shri Y.B. Chavan. The Bill contained three clauses and a
short Statement of Objects and Reasons. The statement reads thus:
concept of ruler-ship, with Privy Purses and Special Privileges unrelated to
any current functions and social purposes, is incompatible with an egalitarian
have, therefore, decided to terminate the Privy Purses and Privileges of the
Rulers of former Indian States. Hence thi s Bill."
September 2, 1970 the Bill was voted upon in the Lok Sabha. But on September 5,
1970 the Rajya Sabha rejected the same since the Bill failed in the Rajya Sabha
to reach 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.
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.
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 and Ray, JJ. gave their dissenting
Thereupon, the payment of privy purses to the Rulers was restored.
Subsequently, Parliament enacted a new Act entitled the Constitution
(Twenty-fourth Amendment) Act, 1971 on receiving the ratification by the
legislatures of II States. It received the assent of the President on November
5, 1971. By this amendment Act,-clause (4) reading "Nothing in this
article shall apply to any amendment of this Constitution made under Article
368" was inserted in Article 13 and Article 368 was renumbered as clause
(2). The marginal heading to that article was substituted namely "Power of
Parliament to amend the Constitution 2 (197 1) 1 SCC 85 : (1971) 3 SCR 9 209
and procedure therefore" in the place of "Procedure for amendment of
the Constitution". Before renumbered clause (2), clause (1) was inserted.
In the renumbered clause (2) for the words "it shall be presented to the
President for his assent upon such assent being given to the Bill", the
words "it shall be presented to the President who shall give his assent to
the Bill and thereupon" was substituted.
the renumbered clause (2), clause (3) was inserted, namely: "Nothing in
Article 13 shall apply to any amendment made under this article".
may be recalled that Article 368 was firstly amended by Section 29 of the
Constitution (Seventh Amendment) Act, 1956 by omitting the words and letters
"specified in Parts A and B of the First Schedule" and thereafter by
Section 3 of the Constitution (Twenty-fourth Amendment) Act, 1971.
by Section 55 of the Constitution (Forty-second Amendment) Act, 1956, clauses
(4) and (5) were inserted.
this amendment has been held unconstitutional in Minerva Mills Ltd. v. Union of
India3 holding that Section 55 of the Forty-second Amendment Act inserting
clauses (4) and (5) to Article 368 had transgressed the limits of the amending
power of the Parliament which power in Kesavananda Bharati4 was held not to
include the power of damaging the basic features of the Constitution or
destroying its basic structure.
The Constitution (Twenty-fifth Amendment) Act, 1971 by substituting a new
clause to clause (2) of Article 31 and inserting clause (2-B) after clause (2A)
came into force.
same Amendment Act, Article 31-C was inserted after Article 31-B entitled
"Saving of laws giving effect to certain directive principles". It is
significant to note that Article 31 was omitted by the Constitution (Forty-
fourth Amendment) Act, 1978 w.e.f. June 20, 1979.
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".
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.
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 the petitioner.
Another Writ Petition No. 352 of 1972 was filed by H.H. Nawab Mohammed Iftikhar
Ali Khan of Malerkotla seeking same relief as in Writ Petition No. 351 of 1972.
may be noted when Writ Petition Nos. 351 and 352 challenging the Twenty-fourth,
Twenty-fifth and Twenty-sixth Amendment Acts were filed in this Court, Writ
Petition No. 135 of 1970 entitled Kesavananda Bharati v. State of Kerala4 was
pending before this Court.
(1980) 3 SCC 625 : (1981) 1 SCR 206 4 Kesavananda Bharati v. State of Kerala,
(1973) 4 SCC 225 210
When both these writ petitions i.e. W.P. Nos. 351 and 352 of 1972 were listed
together, on August 28, 1972, this Court passed the following order:
hearing for the Parties, the Court directed issue of Rule Nisi and directed
these petitions to be heard along with Writ Petition No. 135 of 1970.
Respondents granted time till end of September 1972 to file counter affidavit
to the writ petitions. Notice of the writ petitions shall issue to the
Advocates-General of all the States. All the writ petitions to be heard on
October 23, 1972. Written arguments dispensed with."
thirteen-Judge Bench of this Court in Kesavananda Bharati v. State of Kerala4
heard some writ petitions along with these two writ petitions and gave its
view by the majority in these writ petitions is as follows:
Nath case5 is overruled;
Article 368 does not enable Parliament to alter the basic structure or
framework of the Constitution;
The Constitution (Twenty-fourth Amendment) Act, 1971 is valid;
Section 2(a) and (b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is
The first part of Section 3 of the Constitution (Twenty-fifth Amendment) Act,
1971 is valid. The second part, namely, 'and no law containing a declaration
that it is for giving effect to such policy shall be called in question in any
court on the ground that it does not give effect to such policy' is invalid.
The Constitution (Twenty-ninth Amendment) Act, 1971 is valid.
Constitution Bench will determine the validity of the Constitution
(Twenty-sixth Amendment) Act, 1971 in accordance with law.
cases are remitted to the Constitution Bench for disposal in accordance with
will be no order as to costs incurred up to this stage."
pursuance of the said order, Writ Petition No. 351 of 1972 is now before this
Constitution Bench for determination of the constitutional validity of the
Twenty- sixth Amendment Act in accordance with the law laid down in Kesavananda
Since the constitutional validity of the same Twenty- sixth 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.
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.
Nath v. State of Punjab, (1967) 2 SCR 762: AIR 1967 SC 1643 211
The first amendment was challenged in Sankari Prasad Singh Deo v. Union of
India6 but the Supreme Court unanimously upheld the validity of the Amendment.
brief note as regards the circumstances which necessitated the Twenty-fourth
Amendment being brought may be recapitulated.
The Constitution Bench of this Court in Sajjan Singh v. State of Rajasthan7 wherein the constitutional validity
of the Constitution (Seventeenth Amendment) Act, 1964 was challenged,
reiterated the views expressed in Sankari Prasad6 by a majority of three Judges
although two Judges gave their separate dissenting judgments. One of the
dissenting Judges, Hidayatullah, J. stated that the "Constitution gives so
many assurances in Part III that it would be difficult to think that they were
the playthings of a special majority". The other dissenting Judge, Mudholkar,
J. took the view that the word "law" in Article 13 included a
constitutional amendment under Article 368 and that, therefore, the fundamental
rights part was unalterable. In his view, Article 13 qualified the amending
power found in Article 368 making the fundamental rights part of India's
The concerns of the two dissenting learned Judges came before an eleven-Judge
Bench of this Court in Golak Nath v. State of Punjab involving another round of
attack on three Amendment Acts, namely, the First, Fourth and Seventeenth
Amendment Acts. This Court by a ratio of six to five held that the' Parliament
had no power "to amend any of the provisions of Part III so as to take
away or abridge the fundamental rights enshrined in that Part. The decision In Golak
Nath5 was rendered in 1967, but one of the amendments it would invalidate dated
from 1951, another from 1955 and another from 1964. Therefore, this Court in
order to avoid any catastrophe that would have ensued in the social and
economic relations, had the Court ruled that the amendments were void ab initio,
relied on American cases and adopted the doctrine of prospective overruling
which was construed to enable the Court to reverse its prior decisions, to
continue the validity of the three amendments in issue, and to declare that after
judgment the Indian Parliament would have no power to mend or abridge any of
the fundamental rights. Therefore, intending to override the ruling in Golak Nath
case-' the Twenty-fourth (Amendment) Act, 1971 was brought, as reflected from
the Objects and Reasons of the Twenty-Fourth Amendment, which read thus:
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 845 212
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.
amendment Acts, namely, Twenty-fourth and Twenty-fifth besides Twenty-ninth
Amendment Act and the continuing validity of the dictum laid down in Golak Nath
case5 were the subjects for decision in Kesavananda Bharati4. Though Writ
Petition No. 351 of 1972 challenging the Twenty-fourth, Twenty-fifth and
Twenty-sixth Amendment Act was also listed along with other writ petitions in Kesavananda
Bharati4 the constitutional validity of the Twenty-sixth Amendment was left
over for determination by a Constitution Bench.
shall now proceed to examine the constitutional validity of the impugned
The question whether Article 291 is a provision related to the Covenants and
Agreements entered into between the Rulers of the States and Indian Dominion
and is that in reality and substance a provision on the subject-matter of
covenants and agreements were considered by Hidayatullah, C.J. in his separate
concurring judgment in Madhav Rao2 and they are answered in the following
terms: (SCC p. 141, para 76) "The article when carefully analysed leads to
these conclusions: The main and only purpose of the provision is to charge
Privy Purses on the Consolidated Fund of India and make obligatory their
payment free of taxes on income. It narrows the guarantee of the Dominion
Government from freedom from all taxes, to freedom only from taxes on income.
I have occasion to show that the Princes had guaranteed to themselves their
Privy Purses free of all taxes. The Dominion Government had guaranteed on
assured the same freedom. The Constitution limits the freedom to taxes on
income and creates a charge on the Consolidated Fund. There were the guarantees
as in the Merger Agreements of Bilaspur and Bhopal (quote( earlier) which are
ignored by the article. The guarantee of the Dominion Government is thus
continued in a modified form. The reference to Covenants and Agreements is
casual and subsidiary. The immediate and dominant purpose of the provision is
to ensure payment of Privy Purses, to charge them on the Consolidated Fund and
to make them free of taxes or income." (emphasis supplied'
Shah, J. speaking for the majority with reference to the covenants and
agreements made the following observation:
the Constitution the obligation to pay the privy purse rested upon the Union of
India, not because it was inherited from the Dominion of India; but because of
the constitutional mandate under Article 291. The source of the obligation was
in Article 291, and not in the covenants and the agreements." (emphasis
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 530 213 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.
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.
The Constitution remains at the apex because it is the supreme law. The
question is what is the power of the Parliament to amend the Constitution
either by abridging or omitting any existing article or adding any new article
or clause or substituting any new clause for its original clause. To answer
this most important question, some supplementary questions have to be examined,
those being as to what is the parameter or the mode by which an amendment can
be brought and what are the limitations either express or implied on the
amending power which inhere in the Constitution itself including its Preamble.
Before, we proceed further, let us understand what is meant by an ,amendment'.
The word has Latin origin;
to amend means to correct. Walter F. Murphy in Constitutions, Constitutionalism
and Democracy while explaining what 'amendment' means has stated:
an amendment corrects errors of commission or omission, modifies the system
without fundamentally changing its nature that is, an amendment operates within
the theoretical parameters of the existing Constitution."
our Constitution, the expression 'amendment of the Constitution' is not
defined. However, Part XX which contains one article viz. Article 368 provides
a special procedure for amending certain provisions of the Constitution under
the heading "Amendment of the Constitution".
is not necessary for us to deal with the different provisions of the
Constitution and the procedures for amendment as laid down by the Constitution
because the authority of the Parliament in bringing about the impugned
Amendment Act is not under challenge.
After the judgment of Madhav Rao Scindia2 the Twenty- sixth Amendment was
brought to overcome the effect of the judgment. The Objects and Reasons of the
Twenty-sixth Amendment makes the position clear, which read thus:
concept of ruler-ship, with privy purses and special privileges unrelated to
any current functions and social purposes, was incompatible with an egalitarian
therefore, decided to terminate the privy purses and privileges of the Ruler of
former Indian States. It was necessary for this purpose, apart from amending
the relevant provisions of the Constitution to insert a new Article therein so
as to terminate expressly the recognition already granted to such Rulers and to
abolish privy purses and extinguish all rights, liabilities and obligations in
respect of privy purses. Hence this Act." 214
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.
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 there under.
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.
According to Khanna, J. the non obstacle clause (1) has been inserted in the
article to emphasise the fact that the power exercised under that article is
constituent power, not subject to the other provisions of the Constitution and
embraces within itself addition, variation and repeal of any provision of the
Constitution. Mathew, J. put it succinctly stating that the Twenty-fourth
Amendment Act did not add anything to the content of Article 368 as it stood
before the amendment, that it is declaratory in character except as regards the
compulsory nature of the assent of the President to a Bill for amendment Dwivedi,
J. has explicitly stated that except as regards the assent of the President to
the Bill, everything else in the Twenty-fourth Amendment was already there in
the unamended Article 368 and that this amendment is really declaratory in
nature and removes doubts cast on the amending power by the majority judgment
in Golak Nath5. Sikri, C.J. elaborating the above theme has observed that the
Twenty-fourth Amendment, insofar as it transfers power to amend the
Constitution from the residuary entry (Entry 97, List 1) or from Article 248 of
the Constitution to Article 368 is valid; in other words, Article 368 of the
Constitution as now amended by the Twenty-fourth Amendment Act deals not only
with the procedure for amendment but also confers express power on Parliament
to amend the Constitution. He has also further held that under Article 368,
Parliament can now amend every Article of the Constitution as long as the
result is within the limits laid down.
Thus the Constitutional questions that arose in Kesavananda Bharat case4 were
scrupulously and conscientiously examined in detail on varied an( varying
topics from different angles such as 'the basic elements of the Constitutional
structure', 'the basic structure of the Constitution', 'the essential and
non-essential features of the Constitution', 'the plenary power of amendment'
and finally by majority it is laid down that the power of amendment is plenary
and it includes within itself the power to add, alter on repeal the various
articles of the Constitution including those relating to fundamental rights,
but the power to amend does not include the power to alter the basic structure
or framework of the Constitution so as to change its identity In fact, there
are inherent or implied limitations on the power of amendment under Article
shall now examine the various arguments made on behalf of the petitioners and
the interveners grouping all those submissions under separate and distinct
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.
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
India was geographically regarded as one entity it was divided in as many as
about 554 segments big and small.
August 15, 1947 the British paramountly lapsed and India attained its
independence. The fact that a heavy price was paid to attain independence and
freedom which are sanctified by the blood of many martyrs is unquestionable.
During the independence struggle there was popular urge in the Indian States
for attaining the freedom which unleashed strong movements for merger and
integration of the States with the Dominion of India.
The agreements entered into by the Rulers of the States with the Government of
India were simple documents relating to the accession and the integration and
the "assurances and guarantees" given under those documents were only
for the fixation of the privy purses and the recognition of the privileges. The
guarantees and the assurances given under the Constitution were independent of
those documents. After the advent of the Constitution, the Rulers enjoyed their
right to privy purses, private properties and privileges only by the force of
the Constitution and in other respects they were only ordinary citizens of
India like any other citizen; of course, this is an accident of history and
with the concurrence of the Indian people in their Constituent Assembly.
Therefore, there cannot be any justification in saying that the guarantees and
assurances given to the Rulers were sacrosanct and that Articles 291 and 362
reflected only the terms of the agreements and covenants. In fact as soon as
the Constitution came into force, the Memoranda of Agreements executed and
ratified by the States and Union of States were embodied in formal agreements under
the relevant articles of the Constitution and no obligation flowed from those
Agreements and Covenants but only from the Constitutional provisions. To say
differently, after the introduction of Articles 291 and 362 in the
Constitution, the Agreements and Covenants have no existence at all. The
reference to Covenants and Agreements was casual and subsidiary and the source
of obligation flowed only from the Constitution. Therefore, the contention
urged on the use of the words 'guaranteed' or 'assured' is without any force
and absolutely untenable.
The next vital issue is whether the impugned Amendment Act has damaged any
basic structure or essential feature of the Constitution.
According to Mr Soli J. Sorabjee, by the repeal of Articles 291 and 362 which
were an integral 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,
Rao v. Union of India9;
Singhji v. Union of India10 and
Rao Scindia v. Union of India2.
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.
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 reliance on the observation of Mudholkar, J. in Sajjan
Singh v. State of Rajasthan7 reading thus: (SCR p. 966)
"Above all, it formulated a solemn and dignified preamble which appears to
be an epitome of the basic features of the Constitution. Can it not be said
that these are indicate of the intention of the Constituent Assembly to give a
permanency to the basic features of the Constitution."
This observation has been reiterated in a separate judgment of Hegde and Mukherjea,
JJ. in Kesavananda Bharati4 stating that it was Mudholkar, J. who did foresee
the importance of the question whether there is any implied limitation on the
amending power under Article 368 of the Constitution. On the basis of the
above, he has urged that if the intention of the Founding Fathers regarding the
permanence or impermanence of a provision of the Constitution is conclusive for
determining whether a provision is basic or not, there is no difficulty in
gathering the intention of the Founding Fathers from Article 362 itself. He
continues to state that the fact that the "assurances and guarantees"
had been insulated against every future constituent inroad or legislative
incursion of Parliamentary control is further substantiated from the provisions
of Article 291 of the Constitution.
A.K. Ganguly has adopted the above arguments and supplemented the same stating
that the privileges of the Rulers of the State were made an integral part of
the constitutional scheme and that thereby a class of citizens are for
historical reasons accorded special privileges and that the recognition of the
status, rights and privileges conferred on the Rulers were not on temporary
basis and as such they are not liable to be varied or repudiated.
Nariman also emphasised the same.
Before adverting to the above contentions, we state in brief about the basic
principle to be kept in view while amending a Constitution.
(1980)3 SCC 587,588-89 10 (1981) 1 SCC 166, 212 217
our democratic system, the Constitution is the supreme law of the land and all
organs of the Government executive, legislative and judiciary derive their
powers and authority from the Constitution. A distinctive feature of our
Constitution is its amendability.
The Courts are entrusted with important constitutional responsibilities of
upholding the supremacy of the Constitution. An amendment 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
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.
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.
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 with the wisdom behind
or propriety of the constitutional amendment because these are the matters for
those to consider who are vested with the authority to make the Constitutional
amendment. All that the court is concerned with are (1) whether the procedure
prescribed by Article 368 is strictly complied with? and (2) whether the
amendment has destroyed or damaged the basic structure or the essential
features of the Constitution.
an amendment transgresses its limits and impairs or alters the basic structure
or essential features of the Constitution then the Court has power to undo that
amendment. The doctrine of basic structure was originated in Sajjan Singh7 and
has been thereafter developed by this Court in a line of cases, namely,
Coke Mfg. Co. v. Bharat Coking Coal Ltd. 12
Soli J. Sorabjee in support of his contention that Articles 291 and 362 and
clause (22) of Article 366 were integral part of the constitutional scheme
which otherwise would mean the 'essential part of the constitutional scheme',
referred to Webster's New International Dictionary, 3rd Edn. and Collins
Concise English Dictionary, and has pointed out the lexical meaning says, that
'integral' means 'essential' and, therefore, according to him, the total
abolition of the provisions of the Constitution which are its integral parts
otherwise essential parts has damaged the essential and basic features of the
Constitution. To draw strength for his submission, he relied upon certain
observations made by Shah, J. in his judgment in Madhav Rao2 observing,
"By the provisions enacted in Articles 366(22), 291 and 362 of the
Constitution the 11 Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 12
(1983) 1 SCC 147 218 privileges of Rulers are made an integral part of the
constitutional scheme" and "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."
The learned Attorney General has vehemently opposed the above submission
stating that the expression "integral part of the scheme of the
Constitution" used in Madhav Rao2 are not the same as the basic structure
and that expression has to be read in the context of 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,
this context, it becomes necessary to recall certain events which ultimately
gave rise to Madhav Rao case2.
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-fourth Amendment
Bill in 1970 to implement the decision of the All India Congress Committee favouring
removal of privy purses, privileges etc. But the Bill though passed in the Lok Sabha
failed to secure the requisite majority in the Rajya Sabha and thereby it
only thereafter, the President of India issued an Order in exercise of the
powers vested in him under Article 366(22) de-recognising the Rulers and
stopping the privy purses, privileges etc. enjoyed by the Rulers. This Order
passed by the President was the subject-matter of challenge in Madhav Rao2. The
Supreme Court struck down the Order of the President as invalid as in the view
of the Court de- recognition of the Rulers would not take away right to privy
purses when Articles 291 and 362 were in the Constitution.
only in that context, the observations which have been relied upon by Mr Soli
J. Sorabjee, were made. The Twenty-sixth Amendment itself was passed by
Parliament to overcome the effect of this judgment. Now by this Amendment,
Articles 291 and 362 are omitted, Article 363-A is inserted and clause (22) of
Article 366 is amended.
one cannot be allowed to say that the above said omitted articles and unamended
clause were the essential part of the constitutional scheme. So they have to be
read only in the context of a challenge made to the Presidential Order which
sought to render nugatory certain rights guaranteed in the Constitution which were
then existing. In any event, the constitutional bar of Article 363 denudes the
jurisdiction of any Court in disputes arising from covenants and treaties
executed by the Rulers. The statement of Objects and Reasons of Twenty-sixth
Amendment clearly points out that the retention of the above articles and
continuation of the privileges and privy purses would be incompatible with the
egalitarian society assured in the 219 Constitution and, therefore, in order to
remove the concept of rulership and terminate the recognition granted to Rulers
and abolish the privy purses, this Amendment was brought on being felt
are of the opinion that the observations of Shah, J. in Madhav Rao2 that
"the privileges of Rulers are made an integral part of the constitutional
scheme" and that "institution of Rulership is an integral part of the
constitutional scheme", must be read in their proper context. That was a
case, where by a 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.
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 to say that it is an essential feature
of the Constitution. Both are totally distinct and qualitatively different
concepts. The said argument is really born of an attempt to read a judgment as
a statute. One may tend to miss the true meaning of a decision by doing so. We
may say, the aforesaid observations of Shah, J. constituted the sheet-anchor of
the petitioners' argument relating to basic structure.
the above premise, it is not permissible to test the Twenty-sixth Amendment
with reference to the observations made in Madhav Rao2.
shall now dispose of the contention raised in the grounds of the Writ Petition
No. 351 of 1972 that the impugned Amendment is violative of Articles 14, 19(1)(f)
and (g), 21, 31(1) and (2) of the Constitution. Evidently this contention has
been raised in the year in 1972, that is long before the Constitution
(Forty-fourth Amendment) Act of 1978 was passed w.e.f. June 26, 1979. Writ Petition No. 798 of 1992 has
been filed on October
15, 1992 in which the
ground with reference to Articles 19(1)(f) and 31 are left out. It is to be
stated that Articles 19(1)(f) and 31 are completely omitted by the Forty-fourth
Amendment. By the deletion of these articles by Forty-fourth Amendment, the
status of 'right to property' from that of a fundamental right is reduced to a
legal right under Article 300-A which reads "No person shall be deprived
of his property save by authority of law." However, in order to allay the
fears of the minorities in respect of that right guaranteed in the then Article
31, Article 30(1-A) has been inserted by the Forty- fourth Amendment.
The right to property even as a fundamental right was not a part of the basic
structure and even assuming that the right to privy purse is a property, it is
a right capable of being extinguished by authority of law vide Article 300-A.
to emphasise, according to the rules laid down in Kesavananda 220 Bharati4 that
even the fundamental right can be amended or altered provided the basic
structure of the Constitution is not damaged in any way.
Permanent retention of the privy purse and the privileges of rights would be
incompatible with the sovereign and republican form of Government. Such a
retention will also be incompatible with the egalitarian form of our
Constitution. That is the opinion of the Parliament which acted to repeal the
aforesaid provisions 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.
serious argument has been advanced that the privy purse was a just quid pro quo
to the Rulers of the Indian States for surrendering their sovereignty and
rights over their territories and that move for integration began on a positive
promising note but it soon degenerated into a game of manoeuvre presumably as a
deceptive plan or action. This argument based on the ground of breaking of solemn
pledges and breach of promise cannot stand much scrutiny. To say that without
voluntary accession, India i.e. Bharat would be fundamentally
different from that Bharat that came into being prior to the accession is
untenable much less inconceivable. We have already dealt with the necessity of
the Rulers to accede to the integration of States with the Dominion of India in
the earlier part of this judgment and, therefore, it is quite unnecessary to
reiterate in this context, except saying that the integration could have been
achieved even otherwise. One should not lose sight of the fact that neither
because of their antipathy towards the Rulers nor due to any xenophobia, did
the Indian Government entertain the idea of integration but because of the will
of the people. It was the people of the States who were basically instrumental
in the integration of India. It would be apposite to refer to
the observation of Bose, J. in Virendra Singh v. State of Up. 13 The said observation reads as follows:
vestige of sovereignty was abandoned by the Dominion of India and by the States
and surrendered to the peoples of the land who through their representatives in
the Constituent Assembly hammered out for themselves a new Constitution in
which all were citizens in a new order having but one tie, and owing but one
allegiance: devotion, loyalty, fidelity to the Sovereign Democratic Republic
that is India."
is also worthwhile to take note of the historical process of States'
integration which is well set out in Chapter 18 under the heading Indian States
in The Framing of India's Constitution A Study by B. Shiva Rao. A perusal 13
(1955) 1 SCR 415, 435-36: AIR 1954 SC 447 221 of that chapter indicates that
the attitude of the princes towards joining a united India was one of
resistance, reluctance and high bargain, and it was the peoples of the States
who forced them to accede to the new united India.
in other words, the States were free but not stable because of the stress and
strain they underwent both from inside and outside. Though the process of
integration and democratisation called as "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.
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.
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 constitutes an unholy assault on
that spirit which is impermissible and beyond the amending powers of the
Parliament under Article 368 of the Constitution.
to him, the equality clause as interpreted by this Court in
Gandhi v. Union of India14,
R.D. Shetty v. International Airport Authority of India15,
Lal Lakshmi Reddy v. State of J & K16,
E.P. Royappa v. State of T.N.17,
Gandhi case11 and
Minerva Mills case3 is the most important indispensable feature of the
Constitution and destruction thereof will amount to changing the basic
structure of the Constitution.
Harish Salve in addition to the above, urged that the basic structure test is
to be applied on the touchstone of the Constitution as it stood while being
delivered at the hands of the Constitution-makers and that it would be contrary
to the very principle of the basic structure to apply any personal notion or
ideological predilections while determining the 'personality test' of the
original Constitution. Further he states that the identity of the Constitution
has been lost on account of the impugned Amendment.
As regards the submission that the amendment is an ugly epitome of immorality
perpetrated by the Indian Parliament, it has been seriously opposed by the
learned Attorney General that this argument based on immorality has only to be
stated to be rejected and that it is an elementary principle of jurisprudence
that a law cannot be interpreted on the basis of moral principles. In this
connection, reference may be made to the following passage in Dias's
Jurisprudence, 5th Edn., at pages 355 and 356. It reads thus:
(1978) 1 SCC 248 :(1978) 2 SCR 621 15 (1979) 3 SCC 489 16 (1980) 4 SCC 1 (1980)
3 SCR 1338 17 (1974) 4 SCC 3 1974 SCC (L&S) 165 : (1974) 2 SCR 348 222
"As a positivist, Prof. Hart excludes morality from the concept of law,
for he says that positivists are concerned to promote clarity and honesty in
the formulation of the theoretical and moral issues raised by the existence of
particular laws which were morally iniquitous but were enacted in proper form,
clear in meaning, and satisfied all the acknowledged criteria of validity of a
view was that, in thinking about such laws, both the theorist and the
unfortunate official or private citizen who was called on to apply or obey
them, could only be confused 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
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 appear to be a greater separation between his concept of law and his
positivism than ever he alleges between law and morality. For the limited
purpose of identifying 'laws' his concept seeks to accomplish more than is
necessary; for the purpose of portraying law in a continuum it does not go far
enough." 102. Bentham in his Theory of Legislation, Chapter XII at page 60
said thus: "Morality in general is the art of directing the actions of men
in such a way as to produce the greatest possible sum of good. Legislation
ought to have precisely the same object. But although these two arts, or rather
sciences, have the same end, they differ greatly in extent. All actions,
whether public or private, fall under the jurisdiction of morals. It is a guide
which leads the individual, as it were, by the hand through all the details of
his life, all his relations with his fellows.
cannot do this; and, if it could, it ought not to exercise a continual
interference and dictation over the conduct of men. Morality commands each
individual to do all that is advantageous to the community, his own personal
advantage included. But there are many acts useful to the community which
legislation ought not to command. There are also many injurious actions which it
ought not to forbid, although morality does so. In a word legislation has the
same centre with morals, but it has not the same circumference." 103.
Reference may also be made to Krishena Kumar v. Union of India' 8.
The above passages remind us of the distinction between law and morality and
the line of demarcation which separates morals from legislation.
(1990) 4 SCC 207: 1991 SCC (L&S) II 2: (1990) 14 ATC 846 223 The sum and
substance of it is that a moral obligation cannot be converted into a legal
In the light of the above principle, the Attorney General is right in saying
that courts are seldom concerned with the morality which is the concern of the
According to him there is no unreasonableness, unfairness and dishonesty in
bringing this amendment or in any way injuring the basic feature of the
Constitution and this amendment has not caused any damage to the concept of
reasonableness and non-arbitrariness pervading the entire constitutional
On a deep consideration of the entire scheme and content of the Constitution,
we do not see any force in the above submissions. In the present case, there is
no question of change of identity on account of the Twenty- sixth 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.
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 Prasad Singh v. State
After carefully going through the above decisions which relate to service
matters, we are afraid that such an argument as one made by Mr Nariman could be
substantiated on the principles laid down in these two decisions that Article
14 will be violated if unequals are treated as equals. In our considered
opinion this argument is misconceived and has no relevance to the facts of the
present case. One of the objectives of the Preamble of our Constitution is
"fraternity assuring the dignity of the individual and the unity and
integrity of the nation". It will be relevant to cite the explanation
given by Dr Ambedkar for the word "fraternity" explaining that
"fraternity means a sense of common brotherhood of all Indians". In a
country like ours with so many disruptive forces of regionalism, communalism
and linguism, it is necessary to emphasise and re-emphasise that the unity and
integrity of India can be preserved only by a spirit
of brotherhood. India has one common citizenship and
every citizen should feel that he is Indian first irrespective of other basis.
In this view, any measure at bringing about equality should be welcome. There
is no legitimacy in the argument in favour of continuance of princely privileges.
Since we have held that abolition of privy purses is not violative of Article
14, it is unnecessary for us to deal with the cases, cited by Mr Nariman, which
19 (1971) 2 SCC 188 : 1971 Supp SCR 549 20 (1978) 1 SCC 37 : 1978 SCC (L&S)
23 : (1978) 1 SCR 787 224 according to him go to say that any law violating
Article 14 is equally violative of the basic structure of the Constitution,
inasmuch as Article 14 is held to be a basic postulate of the Constitution.
One of the arguments advanced by Mr D.D. Thakur is that the Constitution should
be read in the context of the pluralistic society of India where there are
several distinct and differing interests brought together and harmonised by the
Constitution-makers by assuring each section, class and society, preservation
of certain political, cultural and social features specific to that class or
section. By way of example, reference to Article 370 which confers a special
status for Jammu and
Kashmir, is made. He
continues to state that likewise in the North- Eastern States, the tribes were
given autonomous powers for their District Councils co-equal to 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
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.
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 provisions made for minorities in the
but a step in the historical evolution to achieve fraternity and unity of the
nation transcending all the regional, linguistic, religious and other
diversities which are the bedrock on which the constitutional fabric has been
raised. The distinction between the erstwhile Rulers and the citizenry of India has to be put an end to so as to
have a common brotherhood.
On a careful consideration of the various aspects of both the writ petitions,
we hold that the Constitution (Twenty-sixth Amendment) Act, 1971 is valid in
For all the aforementioned reasons, both the writ petitions as well as the
connected IAs are dismissed. No costs.
It has been brought to our notice that a number of writ petitions are pending
before the Karnataka High Court touching the matter in question raising various
other questions. Since we have now upheld the validity of the Twenty-sixth
Amendment Act, the High Court may proceed to dispose of all those pending writ
petitions with reference to other issues, if any arising, in accordance with
law and in the light of this judgment upholding the constitutional validity of
the impugned Amendment Act.
J. (concurring)- I have had the advantage of perusing the judgment of my
learned Brother Ratnavel Pandian, J.
I am in respectful 225 agreement with him having regard to the importance of
the constitutional issues involved in this case, I would like to add the
It was on the 15th day of August 1947 when India attained freedom, Pandit Jawahar Lal Nehru said in memorable words:
the world sleeps, India will awake to life and freedom. A
moment comes, which comes but rarely in history, when we step out from the old
to the new, when an age ends and when the soul of a nation long suppressed,
finds utterance." 117. With the advent of freedom, India had to face problems of highest
magnitude. Of the many problems three were most pressing and urgent. The
earlier they were resolved, the better it was for the country. (i) The first of
them was, to restore the communal harmony which had been impaired to a great
extent. (ii) Princely States had to be integrated into the Indian Union. (iii)
There was necessity to frame a republican constitution which would vibrate the
With the dawn of independence it was felt 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.
This invitation was accepted on May 19, 1949.
On this the White Paper says at page 109:
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 which, could have no place in a democratic
set-up. The matter was, therefore, further discussed by the Ministry of States
with the Premiers of Unions and States on May 19, 1949 and it was decided, with their
concurrence, that the Constitution of the States should also be framed by the
Constituent Assembly of India and should form part of the Constitution of
India." 121. It may not be correct to state that those who sat down
together in the Constituent Assembly and those who sent their representatives
there, sat as conqueror and conquered, as those who ceded and as those who
absorbed, as sovereigns or their plenipotentiaries contracting alliances and
entering into treaties as high contracting parties to an act of State. They
were not there as sovereign and subject, or as citizen and alien. On the
contrary, they were the sovereign peoples of India, free democratic equals,
forging the pattern of a new life for the common weal moving with a spirit of
When India became a Dominion every vestige of
sovereignty was abandoned, equally so, by the States. They all surrendered to
the peoples of the 226 land who through their representatives in the
Constituent Assembly hammered out for themselves a new Constitution in which
all were citizens, in a new order having but one tie, and owing but one
allegiance, devotion, loyalty, fidelity, to the Sovereign Democratic Republic
that is India as was eloquently stated by Bose, J., in Virendra Singh v. State
of U. P. 13 "At one stroke all other territorial allegiances were wiped
out and the past was obliterated except where expressly preserved;
moment of time the new order was born with its new allegiance springing from
the same source for all, grounded on the same basis: the sovereign will of the
peoples of India with no class, no caste, no race,
no creed, no distinction........
The will of the Union Government was clearly expressed in its White Paper:
page 115 it is said:
the inauguration of the new Constitution the merged States have lost all
vestiges of existence as separate entities;" and at page 130:
new Constitution of India gives expression to the changed conception of Indian
unity brought about by the 'unionisation of States........ and at page 13 1:
the scheme of 1935 the new Constitution is not an alliance between democracies
and dynasties but a real union 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.
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.
Likewise, Article 366(22) defined the "Ruler".
On September 2, 1970, a Bill (Twenty-fourth Amendment
Bill, 1970) was introduced omitting these articles. Though it was passed in the
Lok Sabha it could not obtain the requisite majority of two-thirds of the
members present in voting in the Rajya Sabha. Therefore, the motion for
introduction of the Bill was declared lost. Immediately thereafter the
President of India in exercise of his power under clause (22) of Article 366 of
the Constitution signed an instrument withdrawing recognition of all the
the order was challenged in this Court under Article 32 of the Constitution of
India. In Madhav Rao 227 Scindia v. Union of India2 it was held that the order
of the President derecognising the Rulers was ultra vires and illegal. (In the
later part of this judgment the ratio of this ruling will be discussed in
detail.) In order to render this ruling ineffective the Twenty-sixth Amendment
to the Constitution was introduced. The following tabulated statement will
bring out the legal position as is obtainable after Twenty-sixth Amendment.
before Twenty-sixth Amendment 291.
Where under any covenant or agreement entered into by the Ruler of any Indian
State before the commencement of the 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, and paid out of, the Consolidated Fund of India; and (b) the sums
so paid to any Ruler shall be exempt from all taxes on income.
In 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 in Article 291 with respect to the personal rights,
privileges and dignities of the Ruler of an Indian State.
after Twenty-sixth Amendment 291.
purse sums of Rulers] Repealed by the Constitution (Twenty-sixth Amendment)
Act, 1971, Section 2.
Rights and privileges of Rulers of Indian States. Repealed by the Constitution
(Twenty-sixth Amendment Act, 1971, Section 2.
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
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.
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.
(22) "Ruler" means 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.
The validity of this amendment was challenged which came up for consideration
in Kesavananda Bharati v. State of Kerala'. The Court after holding that the basic structure of the Constitution
cannot be amended directed by its judgment dated April 24, 1973 that the
Constitution Bench will determine the validity of the Constitution
(Twenty-sixth Amendment) Act, 1971 in accordance with law and the cases are
remitted to the Constitution Bench for disposal in accordance with law.
This is how the matter comes before us.
Soli J. Sorabjee, learned counsel for the petitioners relying on Madhav Rao
case2 makes the following submissions.
Articles 291 and 362 embodied and guaranteed pledges to the Rulers. They are
based on elementary principles of justice. The underlying purpose of these
articles was to facilitate stabilization of the new order and to ensure organic
unity of India.
This Court in no unmistakable terms said that Articles 366(22), 291 and 362 are
integral part of the constitutional scheme. The institution of ruler-ship is an
integral part of the constitutional scheme. This enunciation of law is by a
Bench of nine Judges and is binding.
"Integral" means essential. Such a provision, therefore, could
constitute the basic feature of the Constitution. Consequently, the total
abolition of these provisions of Constitution would necessarily damage its
essential or basic feature.
Therefore, if the amendment damages the basic or an essential feature of the
Constitution it would be beyond the constituent power of the Parliament 229 as
laid down in Waman Rao v. Union of India9 as also in Bhim Singhji v. Union of
The correct approach is to examine in each case the place of the particular
feature in the scheme of our Constitution, its object and purpose as was held
in Indira Nehru Gandhi v. Rai Narain11 (SCC p. 252).
It was by the incorporation of Articles 291 and 362 that the
Constitution-makers were able to get the willing consent and cooperation of the
Rulers 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.
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.
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.
of faith has been sanctioned. Consequently, the character and personality of
the Constitution have been changed from one of honouring solemn promises and
doing justice into one of breaking solemn pledges.
One of the tests of identifying the basic feature is, whether the identity of
the Constitution has been changed.
laid down in Kesavananda Bharati case4 the question to be addressed is, can it
maintain its identity if something quite different is substituted? The
personality of the Constitution must remain unchanged. It is not necessary that
the constitutional amendment which is violative of a basic or essential feature
should have an instant or immediate effect on the basic structure. It is enough
if it damages the essential feature as laid down in Indira Nehru Gandhi 11. The
test to be applied, therefore, is whether the amendment contravenes or runs
counter to an imperative role or postulate which is an integral part of the
Constitution. As a matter of fact in Bhim Singhji case10 it has been laid down
that if a statutory provision like Section 27 of the Urban Land (Ceiling and Regulation) Act, 1976 confers unfettered
discretion and thereby violates Article 14 of the Constitution, it can also
damage the basic structure of the Constitution. For all these reasons, it is
submitted that the impugned Amendment is bad in law.
D.D. Thakur, learned counsel for the petitioner supporting Mr Soli J. Sorabjee,
urges that one of the most important features of the Indian Constitution is
morality. By the impugned Amendment, morality is destroyed because Article 361
before the amendment contained a solemn promise to the future generations. By
the impugned Amendment the solemn promise is breached.
The privy purses are charged upon the Consolidated Fund of India and therefore,
goes out of control of Parliament.
141. These privy purses are payable during the lifetime of Maharajas or
Princes. If, therefore, it is temporary in nature and is to last only for a
stated period, would the Parliament have intended to amend the law? If that was
the intention of incorporation of these provisions in the Constitution, the
amendment would run counter to such an intention and therefore, cannot be
Article 14 guarantees equality which forbids unfair treatment. Where by reason
of this amendment, the petitioner is subjected to unfair treatment, there is an
impairment of basic structure since equality is a basic structure. In
connection with this submission, the 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.
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.
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.
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 and 1473.
R.F. Nariman, learned counsel appearing for petitioner 1 would draw our
attention to Section 87(b) of the Code of Civil Procedure. That provision lists
the immunities of foreign Rulers. That was challenged as violative of Article
14 of the Constitution. That challenge was repelled in Mohanlal Jain v. His
Highness Maharaja Shri Sawai Man Singhji23. On the same line of reasoning, it
should be held, where by the impugned Amendment, the Princes who form a class
is sought to be destroyed there is violation of Article 14. Wherever unequals
are treated as equals, this Court has disapproved of such treatment as seen
from Ramesh Prasad Singh v. State of Bihar20 (SCR at p. 793: SCC p. 42) and Nagpur Improvement Trust v. Vithal
If, therefore, there is violation of Article 14 that would be offensive of
basic structure as seen from Minerva Mills Ltd. case3. It is added that the
impugned Amendment is violative of Article 51 (c) of the Constitution.
The learned Attorney General in countering these submissions advanced on behalf
of the petitioners, would argue that the agreements with the Princes were pre-
constitutional agreements. Admittedly, they were entered into 21 (1981) 1 SCC
722: 1981 SCC (L&S) 258 22 (1971) 3 SCC 5 23 (1962) 1 SCR 702: AIR 1962 SC
73 24 (1973) 1 SCC 500: (1973) 3 SCR 39 231 for the purposes of facilitating
integration of the nation and creating the constitutional documents for all
citizens including those of the native States. The history of the development
relating to the merger agreements and the framing of the Constitution clearly
shows that it is really the union of the people of the native States with the
people of the erstwhile British
India. The instruments
of accession are the basic documents and not the individual agreements with the
Rulers. Therefore, to contend that the agreements were entered into by the
Rulers as a measure of sacrifice by them is untenable.
Secondly, the nature of the covenant is not that of a contract since a contract
is enforceable at law. On the contrary, these covenants are made non-justiciable
as seen from Article 363.
The covenants are political in nature and no legal ingredients as the basis can
be read into these agreements as laid down in Usmanali Khan v. Sagarma11.
The guarantees in Articles 291 and 362 are guarantees for the payment of privy
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.
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.
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.
Turning to basic feature, the proper test for determining basic feature is to
find out what are not basic features. Rights arising out of covenants which
were non- justiciable cannot be regarded as basic features. Where, therefore,
Article 363 makes these features non-justiciable, the question of basic feature
does not arise.
It is equally incorrect to contend that the amendment is violative of Article
14. There is no such violation. It is not that by the proposed amendment,
Article 14 is amended. Whether a provision is violative of the basic features
of the Constitution has to be decided on the language of the provisions.
The observations in Madhav Rao case2 have to be read in the context of the
Constitution as it then stood. The Court did not intend limiting the amending
The Twenty-sixth Amendment does not in any manner amend the Constitution
impairing a basic structure.
The right to property even as a fundamental right was not a part of the basic
structure. Even conceding that pre- Twenty-sixth Amendment right to privy
purses to be property, it was a right capable of being extinguished by
authority of law.
permanent retention of the privy purses and the privileges of the Rulers would
be incompatible with a sovereign and republican form of Government. Such a
retention would also be incompatible with the egalitarian form of Government
envisaged by Article 14.
The words "integral part of the scheme of the Constitution" in the
majority judgment in Madhav Rao case2 are not the same as basic structure.They
have to be read in the context of a challenge to an ordinance which sought to
render nugatory certain rights guaranteed in the Constitution then existing. In
any event, the constitutional bar of Article 363 denudes the jurisdiction of
any court in relation to disputes arising from covenants and treaties executed
by Rulers. Hence, it is idle to contend that the impugned Amendment in any
manner interferes with the basic structure of the Constitution.
Khan case1 is still good law. What is overruled by Madhav Rao case2 is the political
291, 362, 366(22) could never have intended to form a basic structure. They
have no overall applicability permeating throughout the entire Constitution so
to as say that their absence will change the nature of the Constitution. The
intrinsic evidence is the availability of a machinery for enforcement. In the
case of the rights guaranteed under 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
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.
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 submission
has not been accepted by this Court as seen from Madhav Rao case2 at pages 53,
Strong reliance was placed on Usmanali Khan case' that the privy purses are in
the nature of compensation. The observations relied upon by the learned
Attorney General have been regarded by the majority in Madhav Rao case2 as not
only obiter but also incorrect as seen from Usmanali Khan case1 at pages 98,
145 and 193. The submission that the privy purses are mere privileges is
contrary to the decision of Madhav Rao case2 since these have been held to be
fundamental rights guaranteed under Articles 19(1)(b) and 31.
(1973) 2 SCC (Jour) 1 233 166. Having regard to the above submissions, the sole
question would be whether the Twenty-sixth Amendment is beyond the constituent
power of the Parliament? To put it in other words, does the amendment damage
any basic or essential feature of the Constitution? 167. The law prior to and
after Twenty-sixth Amendment has already been set out in the tabulated
statement. As could be seen by the impugned amendment, Articles 291 and 362
have come to be omitted. A new Article 363-A has come to be inserted. The
original clause (22) of Article 366 has come to be substituted by a new clause.
In pith and substance, this amendment seeks to terminate the privy purses and
privileges of the Princes of the former Indian States. It also seeks to
terminate expressly the recognition already granted to them as guaranteed and
assured under Articles 291 and 362 of the Constitution.
the impugned Amendment has withdrawn the guarantees and assurances and
abolished the privy purses, personal rights, privileges and dignities. The
validity of the amendment is attacked as under:
Articles 291, 362 and 366(22) of the Constitution form an important basic
structure and demolition of these articles would amount to violation of basic
The covenants entered into are in the nature of contracts backed by
constitutional guarantees. They are further affirmed by making the privy purses
an expenditure charged upon the Consolidated Fund of India. Such being the
position, a breach of the covenant cannot be made since they were intended to
incorporate a just quid pro quo which has come to be nullified by the impugned Amendment.
It is arbitrary and unreasonable and is, therefore, violative of Article 14 and
consequently basic structure.
It is not moral.
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
country, with its institutions, is the proud heritage of the people who inhabit
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.
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 to fresh calamities. I hope the Indian States will
bear in mind that the alternative to cooperation in the general interest is
anarchy and chaos which will overwhelm great and small in a common ruin if we
are unable to get together in the minimum of common tasks. Let not the future
generation curse us for having had the opportunity but failed to turn it to our
234 mutual advantage. Instead, let it be our proud privilege to leave a legacy
of mutually beneficial relationship which would raise this sacred land to its
proper place amongst the nations of the world and turn it into an abode of
peace and prosperity." While clarifying the position, he spoke on November 13, 1947:
State does not belong to any individual.
has been eliminated, certainly not by the efforts of the Princes, but by that
of the people. It is therefore, the people who have got the right to assert
themselves and the Nawab cannot barter away the popular privilege of shaping
its destiny." 169. In this connection, it is worthwhile to quote the
following from The Framing of India's Constitution by B. Shiva Rao, Vol. 5 at
page 520 as under:
Indian National Congress was in the past well known for its sympathy with the
Indian States People's Conference, a body which sought to establish popular
governments in the States. Jawaharlal Nehru himself was closely associated with
this movement. The Rulers of States, who for the most part claimed full and
exclusive personal powers were naturally not in sympathy with this movement.
The start of the proceedings in the Constituent Assembly was not particularly
propitious for cooperation between the Assembly and the Rulers. Moving the
Objectives Resolution on December
13, 1946, in the
Constituent Assembly (in which neither the Indian States nor the Muslim League were at that
time represented) Nehru explained that the resolution did not concern itself
with what form of government the States had or 'whether the Rajas and Nawabs
will continue or not'.
also emphasised that if a part of the Indian Republic desired to have its own
administration it was welcome to have it. But at the same time he made it clear
that the final decision in the matter whether or not there should be a
monarchical form of government in the States was one for decision by the people
of the States:" 170. The political background in which the articles came
up to 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.
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
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:
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.
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:
pension which the Government of India has given a guarantee that it will pay,
by a treaty obligation contracted with another Sovereign Power, appears to
their Lordships to be, 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.' Now, the history of the
integration and the ultimate absorption of the Indian States and of the
guarantee for payment of periodical sums as privy purse to the Rulers of the
former Indian States are well-known. Formerly Indian States were semi-sovereign
vassal States under the suzerainty of the British Crown. With the declaration
of Independence, the paramountcy of the British
Crown lapsed as from August
15, 1947, and the
Rulers of Indian States became politically independent sovereigns. The Indian
States parted with their sovereignty in successive stages, firstly on accession
to the Dominion of India, secondly on integration of the States into sizeable
administrative units and on closer accession to the Dominion of India and
finally on adoption of the Constitution of India and extinction of the separate
existence of the States and Unions of States.
the second phase of this political absorption of the States, the Rulers of the
Madhya Bharat States including the Ruler of Jaora State entered into a Covenant
on April 22, 1948 for the formation of the United State of Gwalior, Indore and Malwa (Madhya Bharat). By Article 11 of the Covenant,
the Covenanting States agreed to unite and integrate their territories into one
State. Article VI provided that the Ruler of each Covenanting State shall not
later than July 1, 1948 make over the administration of the State to the Rajpramukh
and thereupon all rights, authority and jurisdiction belonging to the Ruler and
appertaining or incidental to the Government of the State would vest in the
United State of Madhya Bharat. Article XI(1) provided that 'the Ruler of each
Covenanting State shall be entitled to receive annually from the revenues of
the United State for his privy purse the amount specified against that
Covenanting State in Schedule 1.' In Schedule 1, a sum of Rs 1,75,000 was
specified against the State of Jaora. Article
XI(2) provided that the amount of the privy purse was intended to cover all the
expenses of the Ruler and his family including expenses of the residence,
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
236 Covenant and guarantee all its provisions.' In confirmation of this consent
and guarantee, the Covenant was signed by a Secretary to the Government of
coming into force of the Constitution of India, the territories of Madhya Bharat
became an integral part of India. Article
291 of the Constitution provided:
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 purse:
sums shall be charged on, and paid out of, the Consolidated Fund of India; and
(b) the sums so paid to any Ruler shall be exempt from all taxes on income.' In
view of the guarantee by the Government or the Dominion of India to the Ruler
of Jaora State in the Covenant for the formation of the United State of Madhya Bharat,
the payment of the sums specified in the Covenant as privy purse to the Ruler
became charged on the Consolidated Fund of India, and became payable to him
free from all taxes on income.
362 provides that in the exercise of the legislative and executive powers, due
regard shall be had to the guarantee given in any such covenant as is referred
to in Article 291 with respect to the personal rights, privileges and dignities
of the Ruler of an Indian State. Article 363(1) provides, that notwithstanding
anything contained in the Constitution, the Courts would have no jurisdiction
in any dispute arising, out of any provision in any covenant entered into by
any Ruler of an Indian State to which the Government of the Dominion of India
was a party, or in any dispute in respect of any right accruing under or any
liability or obligation arising out of any of the provisions of the
Constitution relating to any such covenant. Article 366(22) provides that the
expression 'Ruler' in relation to an Indian State means a person by whom the
covenant referred to in Article 299(1) 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.
the Covenant entered into by the Rulers of Madhya Bharat States 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 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.
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 237 to the
amount payable as privy purse under Article 291.
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 the expression
'pension' is due to historical reasons. The privy purse satisfies all the
essential characteristics of a political pension, and as such, is protected
from execution under Section 60(1)(g), Code of Civil Procedure. Moreover, an
amount of the privy purse receivable from the Government cannot be said to be a
debt or other property over which or the proceeds of which he has disposing
power within the main part of Section 60(1), Code of Civil Procedure. It
follows that the third contention of Mr Pathak must be accepted, and 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." (emphasis supplied) 173. This
case is an authority, for the proposition that it is a political pension. The
question is whether this dictum has been overruled by Madhav Rao case2.
At page 145 of the said decision, it is held: (SCC pp. 232-33, para 312)
"... on the coming into force of the Constitution of India, the guarantee
for 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'. With all respect, it appears to me that all
the above was not strictly necessary for the decision of the case and it would
have been enough to say that privy purse was a pension a word which according
to the Oxford Dictionary means 'a periodical payment made specially by a
Government, company, employer etc.' which was political, in nature because it
was based on a political settlement. However it was not the expression of
opinion of only one learned Judge but the unanimous view of three learned
Judges of this Court. In Kunwar Shri Vir Rajendra Singh v. Union of India27 a
Bench of another five learned Judges of this Court have pronounced on the
non-enforceability of the provision for payment of privy purse under Article
291 by resort to legal proceedings. In my view, on the reasoning already given
by me it must be held that the payment of privy purse although placed on a
pedestal which defies annihilation or fragmentation as long as the above
mentioned constitutional provisions enure is still subject to the
constitutional bar of non-justiciability and cannot be upheld or secured by
adjudication in a court of law including this Court." 175. Further, at
page 193 of the said decision, it is held:
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."
(1969) 3 SCC 150: (1970) 2 SCR 631 238 176. 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
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:
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 Article 363, nor is it a
dispute with regard to a right accruing or obligation arising out of a
provision of the Constitution relating to a covenant.
291 the dispute in respect of which does not fall within either clause, the
jurisdiction of the Court is not excluded in respect of disputes relating to
personal rights and privileges which are granted by statutes." Scope of Scindia
Ruling 177. One thing which must be borne in mind while appreciating the scope of
Madhav Rao case 2 is what occurs at page 75 as under:
p. 147, para 97) "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 has been made.
The petitioner challenges the authority of the President by an order purporting
to be made under Article 366(22) to withdraw recognition of Rulers so as to
deprive them of the rights and privileges to which they are entitled by virtue
of their status as Rulers." (emphasis supplied) 178. This Court had no
occasion to go into the scope of constitutional amendment like the present one.
Therefore, all reasons addressed for striking down the Presidential Order must
be confined only to the authority of the President to issue the order under
Article 366(22) of the Constitution.
Structure 179. This takes us to the power of amendment conferred under Article
368. That power of amendment is unlimited except that the basic structure of
the Constitution cannot be amended. What then is the basic structure? Whether
Articles 291, 362, 366(22) 180. In Kesavananda Bharati case 4 Sikri, C.J.
stated at page 165 as under: (SCC p. 366, paras 292, 293 and 294) "The
learned Attorney-General said that every provision of the Constitution is
essential; otherwise it would not have been put in the Constitution. This is
true. But this does not place every provision of the Constitution in the same
position. The true position is that every provision of the Constitution can be
amended provided in the result the basic foundation and structure of the
Constitution remains the same. The basic structure may be said to consist of
the following features:
Supremacy of the Constitution;
Republican and Democratic form of Government;
Secular character of the Constitution;
Separation of powers between the legislature, the executive and the judiciary;
Federal character of the Constitution.
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.
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
The supremacy of the Constitution.
and Democratic form of Government and sovereignty of the country.
Secular and federal character of the Constitution.
Demarcation of power between the legislature, the executive and the judiciary.
The dignity of the individual secured by the various freedoms and basic rights
in Part III and the mandate to build a welfare State contained in Part IV.
The unity and the integrity of the Nation."
and Mukherjea, JJ. in the said judgment stated at page 314 as under: (SCC pp.
480-8 1, para 65 1) "We find it difficult to accept the contention that
our Constitution-makers after making immense sacrifices for achieving certain
ideals made provision in the Constitution itself for the destruction of these
is no doubt as men of experience and sound political knowledge, they must have
known that social, economic and political changes are bound to come with the
passage of time and the Constitution must be capable of being so adjusted as to
be able to respond to those new demands. Our Constitution is not a mere
political document. It is essentially a social document. It is based on a
social philosophy and every social philosophy like every religion has two main
features, namely, basic and circumstantial. The former remains constant but the
latter is subject to change.
core of a religion always remains constant but the practices associated with it
may change. Likewise, a Constitution like ours contains certain features which
(ire so essential that they cannot be changed or destroyed. In any event it
cannot be destroyed from within. In other words, one cannot legally use the
Constitution to destroy itself. Under Article 368 the amended Constitution must
remain 'the Constitution' which means the original Constitution. When we speak
of the ,abrogation' or 'repeal' of the Constitution, we do not refer to any
form but to substance. If one or more of the basic features of the Constitution
are taken away to that extent the Constitution is abrogated or repealed. If all
the 240 basic features of the Constitution are repealed and some other
provisions inconsistent with those features are incorporated, it cannot still
remain the Constitution referred to in Article 368. The personality of the
Constitution must remain unchanged." (emphasis supplied) 183. Further, at
page 322, it was stated as under: (SCC p. 486, para 666) "On a careful
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.
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 structureless or is a 'jelly fish' to
use an epithet of the learned Advocate for the petitioner, the answer would
resolve our doubt. If the Constitution is considered as a mechanism, or call it
an organism or a piece of constitutional engineering, whichever it is, it must
have a structure, or a composition or a base or foundation. What it is can only
be ascertained, if we examine the provisions which the Hon'ble Chief Justice
has done in great detail after which he has instanced the features which constitute
the basic structure.
not intend to cover the same field once again. There is nothing vague or
unascertainable in the Preamble and if what is stated therein is subject to
this criticism it would be equally true of what is stated in Article 39(b) and
(c) as these are also objectives fundamental in the governance of the country
which the State is enjoined to achieve for the amelioration and happiness of
its people. The elements of the basic structure are indicated in the Preamble
and translated in the various provisions of the Constitution. The edifice of
our Constitution is built upon and stands on several props, remove any of them,
the Constitution collapses. These are:
Sovereign Democratic Republic;
Justice, social, economic and political;
(3) Liberty of thought, expression, belief,
faith and worship;
Equality of status and of opportunity.
one of these is important and collectively they assure a way of life to the
people of India which the Constitution guarantees.
To withdraw any of the above elements the structure will not survive and it
will not be the same Constitution, or this Constitution nor can it maintain its
identity if something quite different is substituted in its place, which the
sovereign will of the people alone can do." 185. Palekar, J. in the said
judgment would say at page 619:
pp. 71617, para 1311) 241 "Since the 'essential features and basic
principles' referred to by Mr Palkhivala are those culled from the provisions
of the constitution it is clear that he wants to divide the constitution into
parts one of provisions containing the essential features and the other
containing non-essential features. According to him the latter can be amended
in any way the Parliament likes, but so far as the former provisions are
concerned, though they may be amended, they cannot be amended so as to damage
or destroy the core of 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 or the policy. Clearly
this is not a function of the courts. The difficulty assumes greater proportion
when an amendment is challenged on the ground that the core of an essential
feature is either damaged or destroyed. What is the standard? Who will decide
where the core lies and when it is reached? One can understand the argument
that particular provisions in the Constitution embodying some essential
features are not amendable at all. But the difficulty arises when it is conceded
that the provision is liable to be amended, but not so as to touch its 'core'.
from the difficulty in determining where the 'core' of an 'essential feature' lies,
it does not appear to be sufficiently realized what fantastic results may
follow in working the constitution. Suppose an amendment of a provision is made
this year. The mere fact that an amendment is made will not give anybody the
right to come to this Court to have the amendment nullified on the ground that
it affects the core of an essential feature. It is only when a law is made
under the amended provision and that law affects some individual's right, that
he may come to this Court. At that time he will first show that the amendment
is bad because it affects the core of an essential feature and if he succeeds
there he will automatically succeed and the law made by the Legislature in the
confidence that it is protected by the amended constitution will be rendered
void." 186. Khanna, J. in the said judgment at page 720 stated as under:
(SCC p. 794, para 1483) "So far as the question is concerned as to whether
the right to property can be said to pertain to basic structure or framework of
the Constitution, the answer, in my opinion, should plainly be in the
negative." 187. Mathew, J. in the said judgment at pages 827-28 observed:
(SCC p. 875, paras 1698 and 1699) 242 "But the question will still remain,
even when the core or the essence of a fundamental right is found, whether the
amending body has the power to amend it in such a way as to destroy or damage
the core. I have already said that considerations of justice, of the common
good, or 'the general welfare in a democratic society' might require abridging
or taking away of the fundamental rights.
tried, like Jacob of the Old Testament to wrestle all the night with the angel,
namely, the theory of implied limitation upon the power of amendment. I have
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 opinion from generation to generation
as to the best form of government? Have not great philosophers and thinkers
throughout the ages expressed different views on the subject? Did not Plato
prefer the rule by the Guardians? And was the sapient Aristotle misled when he
showed this proclivity for a mixed form of government? If there was no
consensus yesterday, why expect one tomorrow?" 188. Commenting on this
case and Golaknath5 decision, Subba Rao, ExC.J. in "The Two Judgments: Golaknath
and Kesavananda Bharati"t says at page 18:
result is that the Supreme Court by majority declared that the Parliament under
the Indian Constitution is not supreme, in that it cannot change the basic
structure of the Constitution. It also declared by majority that under certain
circumstances, the amendment of the fundamental rights other than the right to
property would affect the basic structure and therefore would be void. The
question whether the amendment of the fundamental right to property would under
some circumstances affect the basic structure of the Constitution is not free
from doubt: the answer depends upon the view the Supreme Court takes hereafter
of the impact of the opinion of Mathew, Beg, Dwivedi and Chandrachud, JJ.
fundamental rights are the basic features of the Constitution on the opinion of
the six Judges, who held that the core of the fundamental rights is part of the
basic structure of the Constitution. One possible view is that together they
form a clear majority on the content of the basic structure; another possible
view is that their opinion should be read along with their + (1973) 2 SCC
(Jour) 1 243 finding that the entire Constitution, except perhaps the bare
machine of Government, could be repealed by amendment." (emphasis
supplied) 189. If this be the law, the question would be whether Articles 291,
362, 366(22) could ever be intended to form a basic structure. The answer
should be in the negative.
have no overall applicability permeating through the entire Constitution that
the absence of these provisions will change the nature and character of the
examining the question whether these articles constitute the basic structure,
one must have regard to Article 363 of the Constitution. They are made
unenforceable in a court of law. If realty they are to form basic structure,
would not a corresponding right as occurring 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.
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.
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, with privy purses and
special privileges unrelated to any current functions and social purposes, is
incompatible with an egalitarian social order.
have therefore decided to terminate the privy purses and privileges of the
Rulers of former Indian States. It is necessary for the purpose, apart from
amending the relevant provisions of the Constitution, to insert a new article
therein so as to terminate expressly the recognition already granted to such rulers
and to abolish privy purses and extinguish all rights, liabilities and
obligations in respect of privy purses." 192. If the Twenty-sixth
amendment aims to establish an egalitarian society which is in consonance with
the glorious preamble, how could this provision be called a basic structure? No
doubt, in Madhav Rao case2 it was held that these provisions are an integral
part of the Constitution of this country. Apart from the fact that all these
reasons were addressed against the power of the President under Article
366(22), this statement cannot tantamount to basic structure. Nor would it mean
the same as the basic structure.
To determine whether these provisions constitute basic structure or not, they
cannot be viewed in the historic background. By repeal of these 28 Reference by
the President of India Under Article 143(1), (1960) 3 SCR 250 : AIR 1960 SC 845
244 provisions the personality of the Constitution has not changed. India could still retain its identity and
it can hardly be said that the personality has changed. Change of Time and Law
194. The repudiation of the guarantees might result in the nullification of a
just quid pro quo. But, if it is the will of the people to establish an
egalitarian society that will be in harmony with the changing tune of times. It
cannot be denied that law cannot remain static for all times to come. The
extract of Mathew, J. in Kesavananda Bharati case4 highlights this aspect as
under: (SCC p. 875, para 1698) "But the question will still remain, even
when the core or the essence of a fundamental right is found, whether the
Amending Body has the power to amend it in such a way as to destroy or damage
the core. I have already said that considerations of justice, of the common
good, or 'the general welfare in a democratic society' might require abridging
or taking away of the fundamental rights." 195. Weems v. United StateS29
quoted in Francis Coralie Mullin v. Administrator, Union Territory of Delhi3O
succinctly states the law on this aspect as under:
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.
are, to use the words of Chief Justice Marshall, 'designed to approach
immortality as nearly as human institutions can approach it'.
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 construction." (emphasis supplied) 196.
Robert S. Peck in The Bill of Rights & the Politics of Interpretation
states at pages 316-317 as under:
Constitution, then, is not a beginning nor an end, but part of a timeless
Constitution 'intended to endure for ages to come' (M'Culloch v. Maryland-31)
cannot be a closed system or temporally bound. The Constitution is more
properly seen as part of a stream of history. That stream is not always unbroken
and has, frequently, taken radical turns. That its path has been winding is not
surprising since history is not a steady and predictable progression following
earlier events. Still, constitutional rights must be viewed as travelling down
a single historic stream. Today's conclusions, to remain principled and
persuasive, need to relate back to earlier origins. When cases come before the
courts, purposes and concerns 29 217 US
349: 54 LEd 793, 801 (1909) 30 (1981) 1 SCC 608, 617 : 1981 SCC (Cri) 212 31 17
US (4 Wheat) 316: 4 LEd 579 (1819) 245 of timeless character require
translation into practical rules that apply to their most modem manifestations.
In this role, courts perform a mediating function, harmonizing different
strands into a coherent order. But the courts do not exercise an exclusive
authority in giving coherence to constitutional law.
leaders and political institutions have played this role as well, advancing
both the law and the mechanisms available to promote constitutional liberty.
'Great constitutional provisions must be administered with caution,' Justice
Oliver Wendell Holmes reminded us. 'Some play must be allowed for the joints of
the machine, and it must be remembered that legislatures are ultimate guardians
of the liberties and welfare of the people in quite as great a degree as the
courts.' (Missouri, Kansas & Texas Rly. Co. v. May32) The courts are insulated from the
political winds that buffet, motivate, and sometimes disable a legislature.
This independence from the larger political world is critical to the successful
discharge of the tasks we assign the judiciary. Nevertheless,, the courts
operate in a political world of their own. In this variety of politics, courts
must harmonize past with present, conflict with resolution, change with
continuity. And they must contend with a variety of interest groups that
influence the process by their actions and by the appeal of their
arguments." 197. In the words of the famous poet James Russell Lowell:
"New occasions teach new duties:
makes ancient good uncouth:
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
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.
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 relevant portion of
the judgment in Bhimsinghji case10 can now be extracted:
Head notes) Per Tulzapurkar, J.
the restriction under Section 27(1), in the absence of any guidelines governing
the exercise of the power on the part of the competent authority in the matter
of granting or refusing to grant the permission is highly arbitrary, productive
of discriminatory results and, therefore, violates the equality clause of
Article 14. Which of the three objectives mentioned in the preamble should
guide the exercise of power by the competent 32 194 US 267, 270: 48 LEd 971
(1904) 246 authority in any given case is not clear and in any case no standard
has been laid down for achieving the objectives of preventing concentration,
speculation, and profiteering in urban land or urban property. Because of these
reasons the provisions for appeal and revision under Sections 33 and 34 against
the order passed by the competent authority under Section 27, would also not be
of much avail to preventing arbitrariness in the matter of granting or refusing
to grant the permission.
27 is thus ultra vires and unconstitutional." Per Chandrachud, C.J. and Bhagwati,
Iyer, J., concurring) "Sub-section (1) of Section 27 of the Act is invalid
insofar as it imposes a restriction on transfer of any urban or urbanisable
land with a building or a portion only of such building, which is within the
ceiling area. Such property will, therefore, be transferable without the constraints
mentioned in sub- section (1) of the Act." (paras 5, 8 & 10) Per
Krishna Iyer, J. (concurring) "I agree with the learned Chief Justice both
regarding the constitutionality of the legislation and regarding partial
invalidation of Section 27(1)." Per Sen, J.
(1), (2) and (3) of Section 23 and the opening words ,subject to the provisions
of sub-sections (1), (2) and (3)' in Section 23(4) are ultra vires the
Parliament and are not protected by Articles 31-B and 31-C of the Constitution
and further, Section 27(1) is invalid insofar as it imposes a restriction on
transfer of urban property for a period of ten years from the commencement of
the Act, in relation to vacant land or building thereon, within the ceiling
limits." (emphasis supplied) 200. Krishna Iyer, J. stated in the said
judgment at page 186 as under:
question of basic structure being breached cannot arise when we examine the vires
of an ordinary legislation as distinguished from a constitutional amendment.
Bharati4 cannot be the last refuge of the Proprietaries when benign legislation
takes away their 'excess' for societal weal.
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 paralysation
of parliamentary function. Nor can the constitutional fascination for the basic
structure doctrine be made a Trojan horse to penetrate the entire legislative
camp fighting for a new social order and to overpower the battle for abolition
of basic poverty by the 'basic structure' missile. Which is more basic?
Eradication of die-hard, deadly and pervasive penury degrading all human rights
or upholding of the legal luxury of perfect symmetry and absolute 247 equality
attractively presented to preserve the status quo ante? To use the Constitution
to defeat the Constitution cannot find favour with the judiciary I have no
doubt that the strategy of using the missile of 'equality' to preserve
die-hard, dreadful societal inequality is a stratagem which must be given short
shrift by this Court. The imperatives of equality and development are impatient
for implementation and judicial scapegoats must never be offered so that those
responsible for stalling economic transformation with a social justice slant
may be identified and exposed of. Part IV is a basic goal of the nation and now
that the Court upholds the urban ceiling law, a social audit of the Executive's
implementation a year or two later will bring to light the gaping gap between
verbal valour of the statute book and the executive slumber of law-in-action.
The Court is not the anti- hero in the tragedy of land reform, urban and
agrarian." 201. In this case, the Amendment does not either treat unequals
as equals or in any manner violates Article 14.
the privy purses holders are treated alike by the withdrawal of all those
The next aspect of the matter is can the Court go into the morality in
withdrawing these assurances and guarantees.
following extract from Law and Morality by Louis Blom-Cooper Gavin Drewry at
page 2 is very useful:
relationship between law and morals is in effect quadripartite, but it is only
the fourth part that engages our current interest.
first part is a historical and casual question. Has the law been influenced by
moral principles? No one doubts the answer is affirmative; conversely law has
influenced moral principles. The Suicide Act, 1961 no doubt accurately
reflected the long-standing moral view that to take one's own life was not a
crime against the law, a view which had not always been shared by the judiciary
(originally for reasons having to do as much with property as with theological
statutory abolition of the crime of suicide in its turn buttressed and affirmed
the moral attitude.
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
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 theoretical objections.
political morality can be defined only in terms of the franchise, and the
efficacy of representative government though again the argument rests on a
philosophical and psychological, rather than on an empirical plane." 33
(1965) AC 75: (1964) 2 All ER 348 (HL) 248 Impugned Amendment whether moral
204. Then again, dealing with constraints on constitutional interpretation,
Kent Greenawalt in Conflicts of Law and Morality,1987 Edn. state at page 338 as
ordinary legislation, constitutional provisions protecting rights reflect the
moral judgments of those who adopted them, in this case complex judgments that
certain activities should be put beyond the range of control by the political
branches of the government. In constitutions, as in statutes, language may
embody a compromise of competing moral claims, though nothing in our federal
Constitution resembles the relatively precise accommodation of the criminal law
rules governing use of force in self defence. The fact that the Constitution
itself represents moral evaluations does not, of course, establish that moral
evaluation is also the task of those who must decide if statutes and their
applications fall foul of constitutional restraints.
agreement exists on the appropriateness of some other techniques of
interpretation. The point is clearest for actions that the language of the
Constitution, the intent of the Framers, and the decisions of earlier courts
place squarely within the area of constitutional protection. For these actions,
a modern court will rarely need to engage in any debatable moral evaluation.
it will apply the plain law, perhaps after determining that no overwhelming
argument has been made contrary to the indications of these powerful sources.
Even for harder cases, judicial interpretation is not simple moral evaluation;
the implications of the textual language, the Framers' intent, and the
precedents count for something if they point in one direction or another."
205. To the same effect, Micheal J. Perry in Morality Politics and Law 1988 Edn.
states at page 129 as under:
to the view of democracy that underlies originalism, it is illegitimate for the
judiciary to go beyond the enforcement of policy choices to the making of
policy choices at least, it is illegitimate unless the judiciary is authorized
to do so by the legislative and executive branches. And it is illegitimate in
extremism for the undemocratic judiciary to oppose itself, in constitutional
cases, to the democratic branches and agencies of government on the basis of
beliefs never constitutionalized by the gratifiers.
206. Therefore, this Court cannot concern itself with the moral aspect of the
impugned Amendment. The impugned Amendment is the will of the people expressed
In view of the foregoing discussion, these petitions are liable to be
dismissed. Accordingly, these petitions stand dismissed.