Raghunathrao
Ganpatrao Vs. Union of India [1993] INSC 62 (4 February 1993)
Pandian,
S.R. (J) Pandian, S.R. (J) Sharma, L.M. (Cj) Mohan, S. (J) Jeevan Reddy, B.P.
(J) Bharucha S.P. (J)
CITATION:
1993 AIR 1267 1993 SCR (1) 480 1994 SCC Supl. (1) 191 JT 1993 (1) 374 1993
SCALE (1)363
ACT:
Constitution
of India, 1950-Articles 291, 362, 366 (22)
and 363-A--Constitution (Twenty-Sixth Aniendment Act, 1971- Constitutional
validity of-Whether violates basic structure and essential features of the
Constitution.
Constitution
of India 1950-Article 368-Power of
amendment- Limitations.
Constitution
of India, 1950-Articles 14, 19(1)(f), 21, 31(1), (2), 291, 362,
368-constitution (Twenty-Sixth Amendment) Act, 1971-Abolition of privy purse
ether violative of Article ether personality of Constitution change ether
theory of political justice tenable.
Constitution
of India, 1950-Articles 291, 362, 368-
Constitution (Twenty-Sixth Amendment) Act, 1971-Abolition of privy purse ether
Articles 291, 362 organic unity of India facilitated.
Constitution
of India, 1950-Articles 291, 362, 368- Constitution (Twenty-Sixth Amendment)
Act, 1971-Abolition of privy purses-Will of the people expressed through
Parliament-Court's duty whether to concern with moml aspect of amendments.
WRIT
PETITION NO. 351 OF 1992
HEAD NOTE:
The
petitioner was a Co-Ruler of an Ex-Indian State of Kurundwad. His Co-Ruler, on
behalf of both, executed an instrument of accession under Section 5 of the
Government of India Act, 1935 and their State became a part of the Dominion of
India. A Merger Agreement was executed on the 19th February, 1948 and the administration of the State
of the petitioner was also handed over to the Dominion Government on the 8th March, 1948.
The
case of the petitioner was that under the Merger Agreement he 480 481 was
entitled to receive annually from the revenues of the State his privy purse as
specified in the Merger Agreement.
Certain
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.
On 13th October, 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.
The
Rulers and Rajpramukhs of the States agreed to adopt the Constitution drafted
by the Constituent Assembly of India.
In
pursuance of Article 366(22) of the Constitution of India, the petitioner was
recognized as the Ruler of the Kurundwad State with effect from 26th January, 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.
The
Parliament enacted the Constitution (Twenty-Sixth Amend- ment) Act of 1971,
repealing Articles 291 and 362 of the Constitution, a new Article 363-A was
inserted and new clause (22) to Article 366 was substituted. It resulted in
depriving the Rulers of their recognition already accorded to them and
declaring the abolition of the privy purse and extinguishing their rights and
obligation in respect of privy purse.
The
petitioner filed the writ petition challenging the impugned Amendment Act as
unconstitutional and violative and the fundamental rights of the petitioner
guaranteed under Articles 14, 19(1)(f), 21 and 31(1),(2) of the Constitution.
In the
Writ Petition No. 351/72, I.A. Nos. 1 to 3 of 1992 were filed by the daughters
of Late Maharaja of Mysore.
WRIT
PETITION NO. 798 OF 1992 The petitioner was the successor to the Ruler of Mysore
also challenged the Constitution (26th Amendment) Act of 1971 on the same
grounds as in Writ Petition No. 351/72.
482
The petitioner in W.P. No. 351/72 submitted that Articles 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 stabilization of the new order and ensure organic unity of
India; that the deletion of the Articles damaged and demolished the very basic
structure of the Constitution; that the covenants entered into were in the
nature of contracts which was guaranteed constitutionally and affirmed by
making the privy purse an expenditure charged under the Consolidated Fund of
India; that the deletion of the 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; 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; that the
impugned Amendment Act was 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 Constitution; that the Constitution (Twenty-Sixth
Amendment) Act was unconstitutional, null, void and violative of Articles 14,
19(1) (g), 21, 31 (1) and (2) of the Constitution; and 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.
The
petitioner in I.A. No. 3 submitted that the fact that the expression
"guarantees" occurring both in Article 32 and Article 291 besides in
Article 362 ('guarantee') clearly demonstrated 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.
The
petitioner in 1-A No. 1 contended that the erstwhile rulers of the princely
States formed a class apart and there was real and substantial distinction
between them and the citizenry of India; that the impugned amendment which
violated the basic structure of the Constitution was unconstitutional that the
Amendment Act was violative of the essential features contained in Articles 14
and 19(1)(f).
483
The petitioner in W.P. No. 798/92 added that the two Articles were not at all
amendable on the principle of prohibition against impairment of the contractual
obligations; that the impugned Amendment Act was an ugly epitome of immorality
perpetrated by the India Parliament, that, too, In the exercise of its
constituent powers and the said Amendment Act constituted an unholy assault on
the spirit which was impermeable and that the principle of justice, fairness
and reasonableness were beyond the amending powers of the Parliament; that the equality
clause as interpreted by this Court in various decisions was the most important
and indispensable feature of the Constitution and destruction thereof would
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 was 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 was therefore a
fraud on the exercise of power itself Respondent Union of India contended that
the Instruments of Accession were only the basic 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 was unfounded; that the
nature of the covenants was not that of a contract because a contract was
enforceable at law while these covenants were made non- justiciable by the
Constitution vide Article 363; that the covenants were political in nature and
that no legal ingredients as the basis could 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;
that
such a guarantee could 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; and that the theory of political
justice was also not tenable because political justice meant the principle of
political equality such an adult suffrage democratic form of Government etc.
Dismissing
the Writ Petitions and the I.As., this court,
HELD :
(By Full Court) ; The Constitution (Twenty-Sixth
Amendment) Act of 1971 is valid in its entirety. [529G] 484 Per S. Ratnavel Pandian,
J. on his behalf and on behalf of the Chief justice of India, B.P. Jeevan Reddy
and S.P. Baucha, JJ.:
1.01.
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 363A
and amendment of clause (22) of Article 366. The question is answered in the
negative observing that the basic structure or the essential feature of the
Constitution is /are in no way changed or altered by the Constitution
(Twenty-Sixth Amendment) Act of 1971. [529D] 1.02. In 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. [518G] 1.03. The power of amendment is plenary and it
includes within itself the power to add, after or 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 368. [515G]
1.04. There are specific provisions for amending the Constitution. The
amendments had to be made only under and by the authority of the Constitution
strictly following the modes prescribed, of course, subject to the limitations
either inherent or implied. The said power cannot be limited by any vague
doctrine of repugnancy. There are many outstanding interpretative decisions
delineating the limitations so that the Constitutional fabric may not be
impaired or damaged. The amendment which is a change or alteration is only for
the purpose of making the Constitution more perfect, effective and meaningful.
But at the same time, one should keep guard over the process of amending any
provision of the Constitution so that it does not result in abrogation or
destruction of its basic structure or loss of its original identity and
character and render the Constitution unworkable. [519B-D] 1.05. 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 485 is no touchstone outside the Constitution by which the
validity of the exercise of the said powers conferred by it can be tested. [518H,
519A] 1.06. 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. [519D-E] 1.07. If 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. [519F] 1.08. 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. None of these rights are abridged
or modified by this Amendment. [523C] 1.09. 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 not in its basic features nor in its basic form nor in its
character. The question of identity will arise only when there is a change in
the form, character and content of the Constitution. 1527G] 1.10. A moral
obligation cannot be converted into a legal obligation. Courts are seldom
concerned with the morality which is the concern of the law makers. [527D-E]
1.11. 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 486 privileges. Abolition of privy purses is not violative
of Article 14. [528F] 1.12. The Court cannot make surmises on 'ifs' and 'buts'
and arrive to any conclusion that Articles 291 and 362 should have kept in tact
as special provisions made for minorities in the Constitution. It is but a step
in the historical evolution to achieve faternity and unity of the nation
transcending all the regional, linguistic, religious and other diversities
which are the bed-rock on which the constitutional fabric has been raised. The
distinction between the erstwhile Rulers and the citizenary of India has to be put an end to so as to
have a common brotherhood.
[529E-F]
Nawab Usmanali Khan v. Sagamial [1965] 3 SCR 201; H.H. Maharajadhiraja Madhav Rao
Jiwaji Rao Scindia Bahadur & Ors. v. Union
of India, [1971] 3 SCR 9; Minerva Mills v. Union of India, [1980]
3 SCC 625; His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala and Another, [1973] 4 SCC 225; Shankari
Prasad v. Union of India, [1952] SCR 89; Sajjan Singh v. State of Rajasthan,
[1965] 1 SCR 933 at 966; Golak Nath v. State of Punjab, [1967] 2 SCR 762 AIR
1967 SC 1643; Rustom Cawasjee Cooper v. Union of India, [1970] 3 SCR 530; Waman
Rao and Others v. Union of India and Others, [1980] 3 SCC 587 at 588-89; Maharao
Sahib Shri Bhim Singhji v. Union of India and Others, [1981] 1 SCC 166 at 212; Madhav
Rao v. Union, [1971] 3 SCR 9 at 74 and 83; Indira Nehru Gandhi v. Raj Narain,
[1975] Suppl. SCC 1; Sanjeev Coke Manufacturing Company v. Bharat Cooking Coal
Ltd., [1983] 1 SCC 147, Varinder Singh & Ors. v. State of U.P., [1955] SCR
415 at 435; Maneka Gandhi v. Union of India, [1978] 2 SCR 621; R.D. Shetty v.
International Airport Authority of India, [1979] 3 SCC 489; Kasturi Lal Lakshmi
Reddy v. State of Uttar Pradesh, [1986] 4 SCC 704; E.P. Royappa v. State of Tamil Nadu, [1974] 2 SCR 348; Krishna Kumar v. Union of India, [1990]
4 SCC 207; Mfd. Usman & Ors. v. State of Andhara Pradesh and Ors., [1971] Suppl. SCR 549, Ramesh Prasad Singh v.
State of Bihar & Ors., [1978] 1 SCR 787, rererred to.
Report
of the Joint Select Committee on Indian Constitutional Reforms (1933-34);
Report of (he Expert Committee headed by Nalini Ranjan Sarkar (published in
December, 1947), Report of the Indian States' Finances Enquiry Committee,
chaired by Sir V.T. Krishanamachary (appointed on 22nd October, 1948). Report
of the Rau Committee chaired by Sir B.N. Rau (appointed in November, 1948);
Dias: Jurisprudence, Fifth Edition, at pages 355 and 356; Bentham : Theory of
Legislation, Chapter XII at page 60, referred to.
487
Per S. Mohan, J. (Concurring) 1.01. One of the
tests of identifying the basic feature is, whether the identity of the Constitution
has been changed. [537A] 1.02. 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. [537B]
1.03. 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.
[537B]
1.04. Turning to basic structure, 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 feature. Where,
therefore, Article 363 makes these features non-justiciable, the question of
basic feature does not arise. [539H, 540A] 1.05. 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. [539D-E] 1.06. If the 26th 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's case, it was held that these provisions (Articles 291, 362, 366 (22) are
an integral part of the Constitution. Apart from the fact that all these
reasons were addressed against the President under Article 366(22), this
Statement cannot tantamount to basic structure. Nor would it mean the same as
the basic structure. 1559G-H] 1.07. To determine whether these provisions
constitute basic struc- 488 ture or not, they cannot be viewed in the historic
background. By repeal of these 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. [560A] 1.08.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 of times. It cannot be denied that law cannot remain
static for all times to come.
[560C]
1.09 Unity and integrity of India would constitute the basic structure as laid
down in Kesavananda's case but it is too far fetched claim to state that the
guarantees and assurances in these Articles have gone into the process of
unification and integration of the country. One cannot lose sight of the fact
that it was the will of the people and the urge to breathe free air of
independent India as equal citizens that brought
about the merger of these princely States. Therefore, the contention that the
Articles 291 and 362 facilitated the organic unity of India is unacceptable.
[562E-F]
1.10 In this case, the amendment does not either treat unequals as equals or in
any manner violates Article 14.
All
the privy purses holders are treated alike by the withdrawal of all those
privileges. [565E] 1.11. This Court cannot concerns itself with the moral
aspect of the impugned amendment. The impugned amendment is the will of the
people expressed through Parliament. [568A] Virendra Singh and Others v. State
of Uttar Pradesh, AIR 1954 SC 447 at 454; H.H. Maharajadhiraja
Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India, [1971]
3 SCR 9; His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala, [1973] Supp. SCR 1; Waman. Rao and
Others v. Union of India and others, [1980] 3 SCC 587 at 588-89; Maltarao Sahib
Shri Bhim Singh Ji v. Union of India & Ors., [1981] 1 SCC 166 at 212; Indira
Nehru Gandhi v. Raj Narain, [1975] Supp, SCC 1 at 252; Ajay Hasia v. Khalid Mujib
Sehravardi, [1981] 1 SCC 722; Minerva Mills Ltd. v. Union of India & Ors.,
[1981] 1 SCR 206 & 119861 3 SCR 718; O.N. Mohindroo v. District Judge,
Delhi, [1971] (111) SCC 9; Mohanlal Jain v. His Holiness Maharaja Shri Swai
Mari Singh Ji, [1962] 1 SCR 702; Ramesh Prasad Singh v. State of Bihar
Another
v. Vithal Rao & Ors., [1973] 3 SCR 39; Usman Ali Khan v. Sagar 489 Mal
[1965] 3 SCR 201; Golak Nath v. State of Punjab, [1967] 2 SCR 762; Weems v.
United States, 54 Law Edition 801;
Francis
Coralie Mullin v. Administrator, Union Territory of Delhi & Ors., [1981] 1
SCC 608 at 617, referred to.
"The
Framing of India's Constitution' : By B. Shiva Rao at page 520; Robert S. Peck-
"The Bill of Rights & the Politics of Interpretation", at page
316-317; "Law and Morality" : By Louis Blom Cooper Gavin Drewry at
page 2; Kent Greenawalt :
"Conflicts
of Law and Morality", 1987 Edition at page 338, referred to. &
ORIGINAL JURISDICTION: Writ Petition (Civil) Nos. 351/72 and 798 of 1992.
(Under
Articte 32 of the Constitution of India).
G. Ramaswamy,
Attorney General, Soli J. Sorabjee, H.N. Salve, G.L. Sanghi, Dr. V. Gaurishankar,
D.D. Thakur, A.K. Ganguli, J.B. Dadachandji Mrs. A.K. Verma, Sunil Gupta, S. Sukumaran,
Manmohan, Mrs. S. Pathak, S. Rajappa, Ms. A. Subhashini, P. Parmeshwaran,
C.V.S. Rao, R.F. Nariman, M.P. Vinod, R. Nagendra Naidu, N.N. Bhatt, C.N. Sreekumar,
Pichai, D. Goburdhan, Santokh Singh, Ms. M. Karanjawala, Antip Sachthey and G. Prakash
for the appearing Parties.
The
Judgments of the Court were delivered by.
S.
RATNAVEL PANDIAN, J. These two Writ Petitions call in question the
constitutional validity of the Constitution (Twenty-sixth Amendment) Act of
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
petitioner 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 interlocutor Applications
1 to 3 of 1992 in Writ 490 Petition No. 351 of 1972, a synoptical resume of the
case as adumbrated in Writ Petition No. 351/72 with the historical background
may be stated :
The
petitioner, Shri Raghunathrao Raja was the Co-Ruler of Indian State of Kurundwad
Jr. which was prior to 15th August, 1947 a sovereign State in treaty
relationship with, and under the suzerainty of the British Crown.
On the
commencement of the Indian Independence Act, 1947, British Paramountcy lapsed
and the Indian States became completely sovereign and independent. They were
free to accede to either of the two Dominions of India or Pakistan or to remain
independent. The petitioner's co-Ruler, on behalf of both, executed an
instrument of accession under Section 5 of the Government of India Act, 1935,
as adopted under the Indian Independence Act, 1947. This instrument was
accepted by the Governor General of India and the State thus became a part of
the 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 the 15th August, 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 the 19th February, 1948. Then the administration of the
State of the petitioner was handed over on the 8th March, 1948.
The
case of the petitioner is that under the Merger Agreement he was entitled to
receive annually from the revenues of the State his privy 491 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.
Certain
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.
They
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.
Accordingly
on 13th October, 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.
Amendment
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. Supplementary covenants were also executed by the
covenanting States which covenants were concurred in and guaranteed by
Government of India.
Thereafter,
the Constituent Assembly passed and adopted the Constitution. According to the
petitioner, it was only on the 493 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 purse, personal rights, privileges and dignities is 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 Commissioners' provinces under the 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 ad- ministrative
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 449 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.
In 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.
All
the above Indian states formed a separate part of India before their merger
with the rest of India. It is common knowledge that the aim of Government of
India Act, 1935 was to associate the Indian states with the British India as
equal partners in loose federation. When India became independent by the Indian
Independence Act of 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 Central revenues.
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.
it 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 495 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 rupees." It is
appropriate to refer to the speech of Sardar Vallabhbhai Patel made on 12th
October 1949 in the Constituent Assembly on the Draft constitution, on which
reliance was placed by the writ petitioners. The speech reads thus :
"There
was nothing to compel or induce the Rulers to merge the identity of their
States.
Any
use of force would have not only been against our professed principles but
would have also caused serious repercussions. 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.
The
minimum which we could offer to them as quid pro quo for parting with their
ruling powers was to guarantee to them privy purses and certain privileges on a
reasonable and defined basis. The privy purse settlements are, therefore, in
the nature of consideration for the surrender by the Rulers of all their ruling
powers and also for the dissolution of the States as separate units. 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 persons of those Rulers
who helped them in consolidating their empire. Need we cavil then at the small
purposely use the world small price we have paid for the bloodless revolution
which has affected the destinies of millions of our people.
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 496 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
stabilization of the new order." The constitutional provisions of Articles
291 a,-,id 362 which are now deleted by Section 2 of the impugned Constitution
(Twenty-sixth) Amendment Act as they stood, read as follows "291-Privy
purse sums of Rulers (1) Where under any covenant or agreement entered into by
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 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.
(2)
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.
362
Rights and privileges of Rulers of India States In the exercise of the power of
Parliament or of the Legislature of a State to make laws or in the exercise of
the executive power of the Union or of a State, due regard shall be had to the
guarantee or assurance given under any such covenant or agreement as is
referred to in clause 497 (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.
Unmended
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 recognized by
the President as the Ruler of the State, and includes any person who for the
time being is recognized 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 recognized by the President as the Ruler
of an Indian State or any person who, at any time before such commencement, was
recognized by the President as the successor of such Ruler.' In 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 reproduced
:
363-A
Recognition granted to Rulers of Indian States to cease and privy purses to be
abolished Notwithstanding anything in this Constitution or in any law for the
time being in force- (a) the Prince, Chief or other person who, at any time
before the commencement or the Constitution (Twentysixth Amendment) Act, 1971
was recognized by the President as the Ruler of any Indian State or any persons
who, at any time before such commencement, was recognized by the President as
the successor of such ruler shall, on 498 and from such commencement, cease to
be recognized as such Ruler or the Successor of such Ruler.
(b) on
and from the commencement of the Constitution (Twenty-sixth Amendment) Act,
1971 privy purse is abolished and all rights, liabilities and obligations in
respect of privy purse are extinguished and accordingly the Rulers, 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
thus.
Articles
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 stabilization 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 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 'guaranteed 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 499 and that the
deletion of these Articles by the impugned Amendment Act, is arbitrary, unreasoable
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 Constitution.
Mr. Soli
J. Sorabjee, the learned senior counsel in his additional written submissions
has further urged that without the co-operation 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
26th November, 1949 would have been basically different and that India i.e.
Bharat
would have been fundamentally different from the Bharat that came into being.
In
Writ Petition No. 351 of 1972 in Ground Nos. 38, 39 and 40, it is contended
that the Constitution (Twenty-sixth Amendment) Act is unconstitution, null void
and violative of Articles 14, 19(1)(g), 21, 31 (1) and (2) of the Constitution.
Mr. Harish
Salve, the learned senior counsel contended that 291 and 362 when incorporated
were intended to grant recognition to the solemn promises on the strength of
which the former Rulers ageed 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 Schemes' 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
agreements. To highlight the signature of those agreenents whereby the Rulers
were persuaded to sign the instruments, the statement of Shri V.P. Menon who
was Closely connected with the annexation of the princely states and the speech
of Sardar Vallabhbhai 500 Patel made in the Constituent Assembly were cited.
It is
further emphasized 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
principle 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. Pattabhai
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.
Finally,
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.
What
he fmally 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.
Mr.
A.K. Ganguly, the learned senior counsel appearing in IA. 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
October of 1949, Maharaja of Mysore then issued a proclamation on 25th November
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 501 the following day, namely, 26th November,
1949, the Constituent Assembly adopted the Constitution of India.
Thereafter,
on 23rd January, 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 meaning. Learned 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 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 Articles 291(1) reading
"Such 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.
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 87B 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).
502
Mr. D.D. Thakur, the learned senior counsel appearing for the petitioner in
Writ Petition No. 798/92 besides adopting the argument advanced in Writ
Petition No. 351/72 added that these two Articles Were not at all amendable on
the principle of prohibition, against impairment of the contract obligations, a
principle recopised in Section 10, Article 1 of the Constitution of the United
States of America. The same principle is incorporated in the Indian
Constitution in the shape of Articles 362 and 291. According to the learned
counsel, the impugned Amendment Act is an ugly epitome of immorality
perpetrated by the Indian Parliament, that, too, in the exercise of its
constituent powers and the said Amendment Act constitutes an unholy assault on
the spirit which is impermissible and that the principle 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-Constitutional
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 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 503 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. Sagarmal,
[1965] 3 SCR 201 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 to
a political pension within the meaning of S. 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." Furhter
it has been observed in the above case 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 precursive point with regard to the pre-
constitutional Instrument of Accession, the Merger Agreement and the covenants
which guaranteed the payment of privy purse and the recognition of personal
privileges etc. and which ageements ultimately facilitated the integration of
these States with the Dominion of India.
In
1947, India obtained independence and became a
Dominion by reason of the Indian; Independence Act of 1947. The suzerainty of
the British Crown over the Indian States lapsed at the same time because of
Section 7 of that Act.
Immediately
after, all but few of the Indian States acceded to the new Dominion by
executing Instruments of Accession.
The
Instrument of Accession executed by the Rulers provided for the accession of
the States to the Dominion of India on three subjects, namely, (1) 504 Defence,
(2) External Affairs and (3) Communications, their contents being defined in
List I of Schedule VII of the Government of India Act, 1935. This accession did
not imply any financial liability on the part of the acceding States.
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 foregoing 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 into the
constitutional structure of India. The
second phase involved a process of two-fold integration, the consolidation of
States into sizable 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 an 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.
Sardar
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 505 Sir V.T. Krishnamachari
appointed on 22nd October, 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 19th February 1948 and handed over the administration
of the State on 8th
March, 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 Gadi of the State and the Raja's personal
rights privileges and dignities.
Shri Jaya
Chamaraja Wadiyar, father of the petitioner (Sri Srikanta Datta Narasimharaja Wadiyar)
in Writ Petition No. 798 of 1992 executed an Instrument of Accession and
entered into an Merger Agreement/Treaty on 23rd January, 1950.
Under
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. 1st April 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 life time 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 agree- ment
as specified under clause (1) of Article (2) of the Agreement.
We 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.
Accordingly,
Rulers continued to enjoy the said benefits upto 1970.
506 On
14th May, 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 caluses and a
short statement of Objects and Reasons. The statements reads thus :
"The
concept of rulership, with Privy Purses and Special Privileges unrelated to any
current functions and social purposes, is incompatible with an egalitarian
social order.
Government
have, therefore, decided to terminate the Privy Purses and Privileges of the
Rulers of former Indian States. Hence this Bill." On 2nd September, 1979, the Bill was voted upon in the Lok
Sabha. But on 5th
September, 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 have been previously recognised
as Rulers.
This
Presidential Order de-recognising the Rulers was questioned in H.H. Maharajdhiraja
Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India [1971] 3 SCR
9 by filing Writ Petitions under Articles 32 of the Constitution challenging it
as unconstitutional, ultra vires and void.
An
eleven-Judges Bench of this Court by its Judgment dated 15th December 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
judgment.
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 507 Legislature of 11
States. It received the assent of the President on 5th November, 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 and procedure therefor"
in the place of 'Procedure for amendment of the Constitution. Before re-
numbered clause (2), clause (1) was inserted. In the re- numbered clause (2)
for the words "it shall be presented to the President for his assent upon
such assent being to the Bill" the words "it shall be presented to
the President who shall give his assent to the Bill and thereupon" was
sub- stituted. After the re-numbered clause (2), clause (3) was inserted,
namely 'Nothing in article 13 shall apply to any amendment under this
article." It 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 Part A and B of the First Schedule' and
thereafter by Section 3 of the Constitution (Twenty-Fourth Amendment) Act,
1971. Again by Section 55 of the Constitution (Forty-second Amendment) Act,
1956, clauses (4) and (5) were inserted. But this amendment has been held
unconstitutional in Minerva Mills v. Union of India, [1980] 3 SCC 625, holding
that Sections 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 Bharati 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 (2B) after clause (2A) came into
force. By the same Amendment Act, Article 31C was inserted after Article 31B
entitled "Saving of laws giving effect to certain directive
principles". It is significant to note that Article 31 was omitted by the
Constitution (Fourty- fourth Amendment) Act, 1978 w.e.f. 20th June, 1979.
The
impugned Constitution (Twenty-sixth) Amendment, 1971 was passed by the
Parliament and it received the assent of the President on 28th December 1971. By this Act, Articles 291, 362
were omitted and Article 363-A was inserted under the title "Recognition
granted to Rulers 508 of India States to cease and privy purses to be
abolished".
By the
same Amendment Act, an amended new clause was substituted to the then existing
clause (22). We have already reproduced Articles 291, 362 and the past and
present clause (22) of Article 366.
After
the impugned Twenty-sixth Amendment was brought into force w.e.L 28th December,
1971, the present writ Petition No. 351 of 1972 was filed on 24th August, 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 Mohanuned If tikhar Ali Khan of Malekotla
seeking same relief as in Writ Petition No. 351 of 1972.
It 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 His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another was pending before this
Court.
When
both these Writ Petitions i.e., W.P. No. 351 and 352 of 1972 were listed
together, on 28th
August, 1972 this
Court passed the following order :
"Upon
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 States. All the Writ Petitions to be heard on the 23rd October,1972. Written arguments dispensed
with." A thirteen-Judges bench of this court in Kesavananda Bharati v.
State of Kerala, [1973] 4 SCC 225 heard some writ petitions along with these
two writ petitions and gave its conclusions thus:
"The
view by the majority in these writ petitions is as 509 follows:
1. Golak
Nath's case is over-ruled;
2.
Art. 368 does not enable Parliament alter the basic structure of framework of the
Constitution;
3. The
Constitution (Twenty-fourth Amendment) Act, 1971 is valid;
4.
Section 2(a) and (b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is
valid;
5. 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.
6. The
Constitution (Twenty-ninth Amendment) Act, 1971 is valid. The Constitution
Bench will determine the validity of the Constitution (Twenty-sixth Amendment)
Act, 1971 in accordance with law.
The
cases are remitted to the Constitution Bench for disposal in accordance with law.
There
will be no order as to costs incurred up to this stage.' In 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 Bharati.
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.
As
regards the inbuilt separate mechanism for amending the Constitution, Dr. Amedkar
said, "One can, therefore, safely say that the Indian 510 federation will
not suffer from the faults of rigidity or legalism. Its distinpishing feature
is that it is a flexible consideration." Dr. Wheare in his modern
Constitution 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 amendable one. In fact, tin 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.
The
first amendment was challenged in Shankari Prasad v. Union of Indua [1952] SCR 89 but the Supreme Court
unanimously upheld the validity of the Amendment.
A
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 Rajasthan, [1965]
1 SCR 933 wherein the constitutional validity of the Constitution (Seventeenth
Amendment) Act, 1964 was challenged, reiterated the views expressed in Shankari
Prasad by a mojority 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, Mudholker, 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 Constitution unamendable.
The
concerns of the two dissenting learned Judges came before an eleven-Judges
Bench of this Court in Golak Nath v. State of Punjab, AIR 1967 SC 1643
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 Nath was rendered in 1967, but one of the amendments it would
invalidate dated am 1951, another from 1955 and another from 1964. Therefore,
this Court order to avoid any catastrophe that would have ensued in the social
and economic relations, had the Court ruled that the amendments were void 511 ab
initio, relied on American cases and adopted the doctrine of prospective overuling
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 amend or abridge
any of the Fundamental Rights.
Therefore,
intending to override the ruling in Golak Nath's case, the (Twenty-fourth
Amendment) Act, 1971 was brought, as reflected from the Objects and Reasons of
the Twenty- fourth Amendment, which read thus Objects and Reasons In the Golak Nath
case, [1967] 2 SCR 762, 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 curtain 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." 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 Cawasjee Cooper v. Union of India [1970] 3 SCR 530.
The said Act substituted clause (2) and inserted clause (2B) to Article 31 and
added Article 31C. These amendment acts, namely, twenty-fourth and twenty-fifth
besides twentyninth Amendment Act and the continuing validity of the dictum
laid down in Golak Nath's case, were the subjects for decision in Kesavananda Bharati.
Though Writ Petition No. 351 of 1972 challenging the twentyfourth, twenty-fifth
and twenty-sixth Amendment Act was also listed along with other writ petitions
in Kesavananda Bharati the constitutional validity of the twenty-sixth
amendment was left over for determination by a Constitution Bench.
We
shall now proceed to examine the constitutional validity of the ampuped
Amendment Act.
512
The question whether Article 291 is a provision related to the Covenants and
Agreements entered into between the Rulers of the States and Indian Domination
and is that in reality and substance a provision on the subject- matter of
covenants and agreements were considered by Hidayatullah, CJ in his separate
concurring judgment in Madhav Rao and they" are answered in the following
terms "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
in- come. It narrows the guarantee of the Dominion Government from freedom from
all taxes to freedom only from taxes on income.
Earlier
I had occasion to show that the Princes had guaranteed to themselves, their
Privy Purses free of all taxes. The Dominion Government had guaranteed or
assured the same freedom. The Constitution limits the freedom to taxes on
income and creates a charge on the Consolidated Fund. There were other guarantees
as in the Merger Agreements of Bilaspur and Bhopal (quoted 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 on income." (emphasis
supplied) Shah, J speaking for the majority with reference to the covenants and
eements made the following observation :
"After
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 Art. 291. The source of the obligation was in
Art. 291, and not in the covenants and the agreements." (emphasis
supplied) 513 So far as Article 362 is concerned, it has been held by majority
of the Judges that the said Article is plainly a provision relating to
covenants within the meaning of Article 363 and a claim to enforce the rights,
privileges and dignities 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, 362 and
inserted a new Article 363A and also substituted a new clause (22) in place of
its original clause or 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 limitations either express or implied on the amending
power which inters 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 'emendere' to amend means to correct. Walter F. Murply in
'Constitutions, Constitutionalism and Democracy' while explaining what
'amendment' means has stated "Thus 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." In our Constitution, the expression 'amendment of
the Constitution' is not defined. However, Part XX which contains one Article
viz. Article 368 provide a special procedure for amending certain provisions of
the Constitution under the heading "Amending of the Constitution".
514 It
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 Scindia 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 :
"The
concept of rulership, with privy purses and special privileges unrelated to any
current functions and social purposes, was incompatible with an egalitarian
social order.
Government,
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." We shall now deal with the
dictum laid down in Kesavananda Bharati as regards the power vested in the
Parliament and the limitations either express or implied or inherent therefor
to amend the Constitution.
In Kesavananda
Bharati, the Supreme Court upheld the validity of the twenty-fourth Amendment.
Of the 13-Judges, Shelat, Hedge, Grover, Jagmohan Reddy and Mukherjea observed
that the Twenty-fourth Amendment did not more than clarify in express language
that which was implicit in the unamended Article 368 and it did not and could
not add to the power originally conferred thereunder. Ray, J said that the
Twenty-fourth Amendment made explicit what the judgment in Shankari Prasad and
the majority judgment in Sajjan Singh and the dissenting judgment in Golak Nath
said, namely, that Parliament has the constituent power to amend the
Constitution. Sikri, CJ 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-obstante clause (1) has been in- 515 serted 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 regard 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 Nath. Sikri, CJ. 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 I) 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 Constitu- tion as long as the
result is within the limits laid down.
Thus
the Constitutional questions that arose in Kesavananda Bharati's case were
scrupulously and conscientiously examined in detail on varied and 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'
etc.
etc.,
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 or 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
368.
We
shall now examine the various arguments made on behalf of the petitioners and
the interveners grouping all those submissions under separate and distinct
topics.
516
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.
As we
have indicated above there were multiple sequence of events in the historical
evolution which necessitated the Indian Rulers to enter into various agreements
and ultimately to agree for integration of their States with the Dominion of
India by dissolving the separate indentity of their States and surrendering
their sovereignty but reserving only their rights for privy purses and
privileges.
Though
India was geographically regarded as one
entity it was divided in as many as about 554 segments big and small.
On 15th August 1947 the British paramountacy 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 517 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
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,
(1) Waman
Rao and Others v. Union of India and Others, [1980] 3 SCC 587 at 588-80;
(2) Maharao
Sahib Shri Bhim Singhji v. Union of India and Others, [1981] 1 SCC 166 at
212; and
(3) Madhav
Rao v. Union, [1971] SCR 9 at 74 and 83.
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.
Mr.
D.D. Thakur in addition to the above has stated that one of the tests to
determine whether the provision of the Constitution was intended to be
permanent or could be deleted or amended is to see whether the Constitution
makers had intended that to be permanent. In support of his submission, he
placed much reliance on the observation of Mudholkar, J in Sajjan Singh v.
State of Rajasthan, [1965] 1 SCR 933 at page 966 reading thus :
518
"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 feature of the Constitution." This observation has
been reiterated in a separate judgment of Hedge and Mukherjea, JJ in Kesavananda
Bharati 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 imper- manence
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 '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.
Mr.
A.K. Ganguly has adopted the above arguments and supple- mented 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.
Mr. Nariman
also emphasises 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.
In 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 519 of a Constitution
become ultra vires if the same contravenes or transgresses the limitations put on
the amending power because there is no touchstone outside the Constitution by
which the validity of the exercise of the said powers conferred by it can be
tested.
In our
Constitution, there are specific provisions for amending the Constitution. The
amendments had to be made only under and by the authority of the Constitution
strictly following the modes prescribed, of course, subject to the limitations
either inherent or implied. The said power cannot be limited by any vague
doctrine of repugnancy.
There
are many outstanding interpretative decisions delineating the limitations so
that the Constitutional fabric may not be impaired or damaged. The amendment
which is a change or alteration is only for the purpose of making the
Constitution more perfect, effective and meaningful.
But at
the same time, one should keep guard over the process of amending any provision
of the Constitution so that it does not result in abrogation or destruction of
its basic structure or loss of its original identity and character and render
the Constitution unworkable. The Court is not concerned with the wisdom behind
or proprietary 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.
If 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 Singh and
has been thereafter developed by this Court in a line of cases, namely
(1) Kesavananda
Bharati (supra),
(2) Indira
Gandhi Nehru,
(3)
Minerva Mills,
(4) Waman
Rao and
(5) Sanjeev
Coke Manufacturing Company v. Bharat Coaking Coal Ltd., [1983] 1 SCC 147.
Mr. 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 New International Dictionary, 3rd Edition and Collins
Concise English Dictionary, and has pointed out the lexical meaning say, that
'integral' means 'essential' and, therefore, 520 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 Rao observing, "By
the provisions enacted in Articles 366(22), 291 and 362 of the Constitution the
previliges 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." (emphasis
supplied) 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 Rao 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 nuptory 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 Rao is
totally misconceived because only in order to overcome the effect of that
judgment, the Twenty-sixth Amendment was passed by the Parliament in exercise
of its constituent powers. According to the Attorney General, the observations
in the said case were nullified by the Amendment and that judgment is no longer
good law after the Amendment. To test the Amendment on the basis of that
judgment is impermissible and all the arguments based upon this case are,
therefore, misconceived.
In
this content, it becomes necessary to recall certain events which ultimately
gave rise to Madhav Rao's case.
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 AD India Congress committee in 1967, the Union
of India introduced the Twenty- fourth Amendment Bill in 1970 to implement the
decision of the AR 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 lapsed. It was only
thereafter, the President of India issued an Order in exercise of the powers
vested in him under Article 366(22) derecognising the Rulers and stopping the
privy 521 purses, privileges etc. enjoyed by the rulers. This Order passed by
the President was the subject-matter of challenge in Madhav Rao. The Supreme
Court struck down the Order of the President as invalid as in the view of the
Court derecognition of the Rulers would not take away right to privy purses when
Articles 291 and 362 were in the Constitution. It was only in that context, the
observations which have been relied upon by Mr. So;i 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 363A is inserted and clause 22 of Article 366 is amended.
Therefore,
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 362 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 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 necessary.
We are
of the opinion that the observations of Shah, J in Madhav Rao 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. Ordinarily speaking, 'integral' means "of a
whole or necessary to the completeness of a whole' and as "forming a
whole' (Concise Oxford Dictionary). Our Constitution is not a disjointed
document. It incorporates a particular socio- economic and political
philosophy. It is an integral whole.
Every
provision 522 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.
In the
above premise, it is not permissible to test the Twenty-sixth Amendment with
reference to the observations made in Madhav Rao.
We
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 (Fortv-fourth Amendment) Act of 1978 was passed w.e.f. 26th June 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 300A 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 (1A) 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 300A.
Needless
to emphasise, according to the rules laid down in Keshavananda Bharati that
even the fundamental right can be amended or altered provided the basic
structure of the Constitution in any way is not damaged.
Permanent
retention of the privy purse and the privileges of rights 523 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 363A 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)
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.
A
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 de-generated 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 muchness inconceivable. We have already dealt with
the necessity of the Rulers to accede for 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 the 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 Varinder singh & Ors v. State of U.P., [1955] SCR 415 at 435. The said
observation reads as follows 124 "Every 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 owning but one allegiance :
devotion, loyality, fidelity to the Sovereign Democratic Republic that is
India." It 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 Constitution A Study by B. Shiva Rao. A persual 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. To say 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 Usman A1is case, on consideration of their past position.
Hence
there is no question of breaking of solemn pledges or breach of promises etc.
given to the Rulers. Therefore, the repudiation of the same cannot be said to
have amounted to any breach of those guarantees and promises resulting in
alteration of the basic structure of the Constitution.
Mr.
D.D. Thakur has submitted that the Twenty-sixth Amendment is an ugly epitome of
immorality perpetrated by the Indian Parliament, that too in the exercise of
its constituent powers and that the justice, fairness and reasonableness is the
soul, spirit and the conscience of the Constitution of India as framed
originally and that the impugned Amendment Act constitutes an unholy assault on
that spirit which is impermissible and beyond the amending powers of the
Parliament under Article 368 of the constitution.
According
to him, the equality clause as interpreted by this 525 Court in (1) Maneka
Gandhi v. Union of India, [1978] 2 SCR 621, (2) R.D. Shetty v. Intemational
Airport Authority of India, [1979] 3 SCC 489, (3) Kasturi Lal Lakshmi Reddy v.
State of Uttar Pradesh, [1986] 4 SCC 704, (4) E.P. Royappa v. State of Tamil Nadu,
[1974] 2 SCR 348, (5) Indira Gandhi's case and (6) Minerva Mill's case (supra)
is the most important indispensable feature of the Constitution and destruction
thereof will amout to changing the basic structure of the Constitution.
Mr. 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, Fifth Edition, at Page 355 and 356, It reads thus :
"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
system. Their 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 526 better, every
relevant intellectual and moral consideration: we should say, 'This is law-,
but it is too inquitous to be applied or obeyed.' "it was pointed out at
the beginning of this chapter that the principal. call for a positivist concept
of law is to identify laws precisely for the practical purposes of the present
and that for the limited purpose, it is desirable to separate the 'is' from the
'ought'. To accomplish this no more would appear to be needed than simply those
uses of the word 'law' by courts; which is akin to Salmond's definition alluded
to above.
Professor
Hart's concept, however, is of 'legal system', which is a continuing
phenomenon.
...........................................
When
Professor Hart thinks in a continuum, as he does with society, he has to bring
in morality-, but in order to defend positivism he shifts ground and takes
refuge in the present time-frame, for only in this way can he justify the
exclusion of morality for the purpose of identifying laws here and now.
There
would thus 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 'law his concept seeks to accomplish more than is
necessary; for the purpose of portraying law in a continuum it does not go far
enough.
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 527 of his life, all his relations
with his fellows. Legislation 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." Reference may also be made to Krishna Kumar v. Union of
India, [1990] 4 SCC 207.
The
above passages remind us of the distinction between law and morality and the
line of demarcation which separates morals from legislation. The sum and
substance of it is that a moral obligation cannot be converted into a legal
obligation.
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 law
makers.
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 Constitution scheme.
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 nor in its basic features, nor in its
basic form nor in its character. The question of identity wilt 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 528 the writ petitioners and interverners, remains the same
and unchanged.
Mr.
R.F. Nariman has contended that by removing the 'real and substantial'
distinction between the erstwhile Princes forming a class and the rest of the citizenary
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 &
Ors. v. State of Andhra Pradesh & Ors, [1971] Supp. SCR 549 and Ramesh
Prasad Singh v. State of Bihar & Others, [1978] 1 SCR 787.
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 reemphasise 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
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 529 and harmonised by the
Constitution makers by assuring each Section, class and society, preservsation
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 tribals were
given autonomus powers for their District Councils coequal 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 prejudiced.
According
to him, in such a circumstance the "assurances and guarantees given under
Articles 291 and 3462 which are the magna karta assuring the rulers of their
pre-existing 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 363A and amendment of clause (22) of Article 366. We
have already answered this question ill 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 to any conclusion that Articles 291 and 362 should
have been kept intact as special provisions made for minorities in the
Constitution.
It is
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 bed-rock on which the constitutional fabric has been
raised. The distinction between the erstwhile Rulers and the citizenary 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 of 1971 is valid in
its entirety.
For
all the aforementioned reasons, both the Writ Petitions as well as the
connected 1. As 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 530 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.
MOHAN.
J. I had the advantage of perusing the judgment of my learned Brother Ratnavel Pandian,
J. Though I am in respectful agreement with him having regard to the importance
of the constitutional issues involved in this case, I would like to add the
following:
It was
on the 15th day of August, 1947 when India attained freedom. Pandit Jawahar Lal
Nehru said in memorable words:
"When
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 nation long suppressed, finds utterance."
With the advent of freedom, India had to faee problems of highest magnitude. Of
the many problmes three were most pressing and urgent. The earlier they were
resolved, the better it was for the country. The first of them was, to restore
the communal harmony which had been impaired to great extend.
(ii)
Princely States had to be integrated into the Indian Union.
(iii)
There was necessity to frame a republican constitution which would vibrate the
new ideas.
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 paramountcy 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 State to work
through the Councils of 531 Constituent Assembly for the common good of all.
This
invitation was accepted on 19.5.1949. On this the White Paper says at page 109:
"As
the States came closer to the Centre it became clear that the idea of separate
Constitutions being framed for different constituent units of the Indian Union
was a legacy from the Rulers' polity which, could have no place in 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." 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, forgoing the pattern of a
new life for the common weal moving with a spirit of all times.
When India became a Dominion every vestige of
sovereignty was abandoned, equally so, by the States. They all 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 allegiances
devotion, loyalty, fidelity, to the Sovereign Democratic Republic that is India
as was eloquently stated by Justice Bose in Virendra Singh and Others v. State
of Uttar Pradesh AIR 1954 SC 447 at P. 454:
"
At one Stroke all other territorial allegiances were wiped out and the past was
obliterated except where expressly preserved;
at one
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
532 peoples of India with no class, no caste, no race,
no creed, no distinction,....." The will of the Union Government was
clearly expresssed in its White Paper:
At
page 115 it is said:
"With
the inauguration of the new Constitution the merged States have lost all
vestiges of existence as separate entities" and at page 130:
"The
new Constitution of India gives expression to the changed conception of Indian
unity brought about if by....... the unionisation of states.........." and
at page31:
"Unlike
the scheme of 1935 the new Constitution is not an aliance 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." The princes were first stripped of their three virtal fucntions,
defence, foreign affairs and communications.
They
were then urged to transfer internal government to popular movements inside the
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 533 Articles 291 and 362 were brought into the Constitution.
Likewise,
Article 366 (22) defined the "Ruler".
On 2nd September, 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 recognision of all the
Rulers.
Thereupon,
the order was challenged in this Court under Article 32 of the Constitution of
India. In H.H. Maharajadhiraja Madhav Roa Jiwaji Rao Scindia Bahadur & Ors.
v. Union of India, [1971]
3 SCR 9 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 postition as is obtainable after
Twenty Sixth Amendment.
Articles
before 26th Amendment 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.
Articles
after 26th Amendment 291. (Privy purse sums of Rulers) Rep. by the Constitution
(Twenty-sixth Amendment) Act, 1971, Section 2.
534 Article
362.
In
exercise (if the power of Indian States). Rep. by the 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 agreeable as is referred in article
291 with respect to the personal rights, privileges and dignities of the Ruler
of an Indian State.
362.(Rights
and privileges of Rulers of Indian States.)Rep. by the Constitution (Teenty
Amendment) Act, 1971 Section 2.
363-A.
Recognition granted to Rulers of Indian States to cease and privy purses to be
abolished Now it that and any 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 or 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; (b) on and
from the commencement of the Constitution (Twenty-sixth Amendment ) Act, 1971,
privy purse is abolished and all rights, liabilities and obligations in respect
of privy purse are extinguished and accordingly the Ruler or, as the case may
Article 362(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.
535
be, the successor of such Ruler, referred to in clause ( a) or any other person
shall not be paid and sum as privy purse.
"Rulers"
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 Rulers.
The
validity of this amendment was challenged which came up for consideration in
His Holiness Keasavananda Bharati Sripadagalavaru v. State of Kerala, [1973] Suppl. SCR 1.
The
Court after holding that the basic structure of the Constitution cannot be
amended directed by its judgment dated 24th April, 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.
Mr. Soli
J. Sorabjee, learned counsel for the petitioners relying on Madhav Rao's case
(supra) 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 rulership is an
integral part of the constitutional scheme. This enunciation of law is by a
Bench of 9 Judges and is binding.
536
Integral" means essential. Such a provision, therefore, could constitute
the basic feature of the Constitution.
Conseqently,
the total abolition of these previsions 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 as laid down in Waman
Rao and others v. Union of India and others [1980] 3 SCC 587 @ 588-89 as also
in Mahtarao Sahib Shri Bhim Singhji v. Union
of India & Ors., [1981] 1 SCC 166 @ 212.
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. Raj Narain's case, [1975] Suppl. SC(, page 1 @ 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's Rao
case (supra). 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 Legislature 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 he 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.
Breach 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.
537
One of the tests of identifying the basic feature is, whether the identity of
the Constitution has been changed.
As
laid down in Kesavananda Bharati's case (supra), 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's case (supra). 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's
case (supra), it has been laid down that if a statutory provision Section 27 of
the Urban Land (Ceiling & 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.
Mr.
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.
These
privy purses are payable during the life time 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 supported.
Article
14 guarantees equality which forbids unfair treatment. Where by reason of this
amendment, the petitioner is subject 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 case dealing with
equality as Ajay Hasia v. Khalid Mujib Sehravardi, [1981] 1 SCC 722 and Minerva
Mills Ltd. v. Union of India & Ors., [1981] 1 SCR
206 and 538 [1983] 3 SCR 718.
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.
Mr.
A.K. Ganguli, learned counsel on behalf of the intervenor in I.A. No. 3/92 in
W.P. 351/72 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, Delhi, [1971] III SCC 9. As to what would
constitute the basic structure, could be gathered from Kesavananda Bharati Sripadagalvaru's
case (supra), par- ticulary, the passages occurring at parts 582-83, 631, 632,
1159 & 1473.
Mr.
R.F. Nariman, learned counsel appearing for petitioner No. 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 Swai Man Singhji, [1962] 1 SCR 702. 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 Bihar & Ors., [1978]
1 SCR 787 at page 793 and Nagpur Improvement Trust & Another v. Vithal Rao
& Ors., [1973] III SCR 39.
If,
therefore, there is violation of Article 14 that would be offensive of basic
structure as seen from Minerva Mills Ltd. case (supra). 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 for the purposes
of facilitating integration of the nation and 539 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 arc 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
Articles 363.
The convenants
are political in nature and no legal ingredients as the basis can be read into
these agreements as laid down in Usman Ali Khan v. Sagar Mal, 119651 3 SCR 201.
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.
Article
363 as it stood in its original form spells out this proposition. The rights
and privileges in the Articles prior to the 26th Amendment were as acts of
State of the Government and not in recognition of the scarifies of the rulers.
By no means, can it be contended that these guarantees given to the rulers were
ever intended to be con- tinued 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 540 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 basic feature of the Constitution has to be decided
on the language of the provisions.
The
observations in Madhav Rao's case have to be read in the context of the
Constitution as it then stood. The Court did not intend limiting the amending
power.
The
26th 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 26th Amendment right to privy purses to be
property, it was a right capable of being extinguished by authority of law.
A
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 the
Government envisaged by Article 14.
The
words 'integral part of the scheme of the Constitution' in the majority
judgment in Mudhavrao's case (supra) 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.
Usman
Ali's case (supra) is still good law. What is overruled by Madhav Rao's case
(supra) is the political character. Articles 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 say that their absence will
change the nature of the Constitution. The 541 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 a
inferior right than the fundamental right. Hence, it cannot-be called a basic
structure at all. As to what is the meaning of basic structure, reference must
be made to Kesavanand's case (supra).
The
learned Attorney General also draws our attention to an Article of K. Subba Rao,
Ex-Chief Justice of India in [1973] 2 SCC page 1 journal section entitled as
"The two judgments:
Golaknath
and Kesavananda Bharati".
As to
the morality part of the impugned amendment, it is urged that there is nothing
immoral about it. Where the changed situation and anxiety to establish an
egalitarian society require the change of law it is valid.
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's case (supra).
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's case (supra) at pages 53;
90-93.
Strong
reliance was placed on Usman Ali Khan's case (supra) 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 case as not only obiter but also incorrect as seen
from Usman Ali khan's case at pages 98, 145 & 193. The submission that the
privy purses are mere privileges is contrary to the decision of Madhav Rao's
case (supra) since these have been held to be fundamental rights guaranteed
under Articles 19(1)(b) and 31.
Having
regard to the above submissions, the sole question would be whether the 26th
Amendment is beyond the constituent power of the Parliament ? To put it in
another words, does the amendment damage any 542 basic or essential feature of
the Constitution ? The law prior to and after 26th 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 363A has come to be
inserted. The original cause 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. Therefore, 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 under:
(i)
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
structure.
(ii)
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.
(iii)
It is arbitrary and unreasonable and is, therefore, violative of Article 14 and
consequently basic structure.
(iv)
It is not moral.
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 5th, 1947, Sardar Vallabhbhai Patel exhorted
as under:
"This
country, with its institutions, is the proud heritage of the people who inhabit
it.
It is
an accident that some live in the States and some in British India, but all alike partake of its
culture and character. We are all knit together by bonds of blood and feeling
no less than of 543 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 law 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 endeavor, inspired by common allegiance to our
motherland for the common good of us all.
We are
at a momentous stage in the history of India. By common endeavour, we can raise the country to a new greatness while
lack of unity will expose us to fresh calamities. I hope the Indian States will
bear in mind that the alternative to co-operation 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
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 13th November, 1947:
'The
State does not belong to any individual.
Paramountcy
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." In this connection, it is worthwhile to quote the following
from "The framing of India's Constitution" by B. Shiva Rao at page
520 as under 'The Indian National Congress was in the past wellknown for its
sympathy with the Indian States People's Conference, a body which sought to
establish popular 544 governments in the States. Jawaharlal Nehru himself was
closely associated 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 cern itself with what form of Government
the States had or "whether the Rajas and Nawabs will continue or
not".
He
also emphasized 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." 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 13th November, 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 purses.
Nature
of What exactly is a nature of privy purse in the realm of Privy Purse law
could be gathered from Usman Ali Khan's case (supra) at page 206 as under :
"The
third contention of Mr. Pathak raises the question whether an amount payable to
a Ruler of a former Indian State as privy purse is a political pension within the meaning of
Section 60(1)(g), Code of Civil Procedure.
The
word "pension" in Section 60(1)(g), Code of Civil Procedure implies
periodical payments of money by the Government to the pensioner.
See Nawab
Bahadur of 545 Murshidabad v. Kamani Industrial Bank Ltd., (4) 1931 LR 58 IA. 215,
219 & 220 and in Bishamber Nath v. Nawab Imdad Ali Khan, 1890 L.R. 17 IA.
181,186, Lord Watson observed "A 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 Indian and finally on adoption of the
Constitution of India and extinction of the separate existence of the States
and Unions of States. During 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 Rajpramuckh and
thereupon all rights, authority and juris- 546 diction 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 of specified against that
Covenanting State in Schedule I.' 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 al l 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 thereby concur in the above
Covenant and guarantee all its provisions." In confirmation of this
consent and guarantee, the Covenant was signed by a Secretary to the Government
of India.
On the
coming into force of the Constitution of India, the territories of Madhya Bharat
became an integral part of India. Article
291 of the Constitution provided :
"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 547
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 view of
the guarantee by the Government of 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 Con- solidated Fund of India, and became payable to him
free from all taxes on income. Article 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 recopied by the President as the
Ruler of the State, ,and includes any person who for the time being is rccognised
by the President as the successor of such Ruler.
Now,
the covenant entered into by the Rulers of Madhya Bharat by which they gave up
their sovereipity over their respective territories and vested it in the new
United 548 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 courts. Is 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 en- forced in any municipal court. Moreover, if the President refuses to recognise
the person by whom the covenant was entered into as the Ruler of the State, he
would not be entitled to the amount payable as privy purse under Ar- ticle 291.
Now, the periodical payment of money by the Government to a Ruler of a former
Indian State as privy purse on political considerations and under political
sanctions and not under a right legally enforceable in any municipal court is
strictly a political pension within the meaning of Section 6(1)(g) of the Code
of Civil Procedure. The use of the expression "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 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) 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's case (supra).
549 At
page 145 of the said decision, it is held "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 Kanwar Shri
Vir Rajendra Singh v. Union of India [1970] 2 SCR 631 a Bench of another five
learned Judges of this Court have pronounced on the non-enfor- ceability 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.
Further,
at page 193 of the said decision, it is held "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." 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 550 otherwise, if really, this dictum
has been overruled, the very basis of the judgment of Usman Ali Khan's case
(supra) 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 the guarantee under Article 291 is
enforceable notwithstanding Article 363. Therefore, this discussion need not
detain us. As to the scope of Article 363, it could be culled from Madhav Rao's
case (supra) at page 99 :
"A
dispute as to the right to receive the privy purse, is therefore not a dispute
arising out of the covenant within the first limb of 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.
But
since the right to the privy purse arises under Article 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." One thing which must be borne
in mind while appreciating the scope of Madhav Rao's case (supra) is what
occurs at page 75 as under:
Scope
of Scindia "whether the Parliament may by a constitutional amend,Ruling
amendment abolish the fights 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) 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.
551
BASIC STRU- This takes us to the power of amendment conferred CTURE 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 ? In Kesavananda's
case (supra), Sikri CJ.
stated
at page 165 as under:
whether
"The learned Attorney-General said that every Articles 291, provision of
the Constitution is essential; otherwise, it would 362, 366(22) not has 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 :
(i)
Supremacy of the Constitution;
(ii)
Republican and Democratic form of Government;
(iii)
Secular character of the Constitution;
(iv)
Separation of powers between the Legislature, the executive and the judiciary;
(v)
Federal character of the Constitution.
The
above structure is built on the basic foundation, i.e. the dignity and freedom
of the individual. This is of supreme importance. This cannot by any form of
amend- ment be destroyed.
The
above foundation and the above basic features are easily discernible not only
from the preamble but the whole scheme of the Constitution, which I have
already discussed." 552 Shelat & Grover, JJ. in the said judgment
stated at page 280 as under:
"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 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 catalogued but can only be illustrated).
1. The
supremacy of the Constitution.
2.
Republican and Democratic form of Government and sovereignty of the country.
3.
Secular and federal character of the Constitution.
4.
Demarcation of power between the legislature, the executive and the judiciary.
5. The
dignity of the individual secured by the various freedoms and basic rights in
Part III and the mandate to build a welfare State constrained in Part IV.
6. The
unity and the integrity of the nation."
Hedge
& Mukherjea, JJ. in the said judgment stated at page 314 as under :
"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 ideals.
There
is no doubt as men of experience and sound political knowledge, they must have
known that social economic and political chan- ges are bound to come with the
passage of time and the Constitution must be capable of being so adjusted as to
553 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. The core of a
religion always remains constant but the practices associated with it may
change. Likewise, a Constitution like ours contains certain features which 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 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).
Further,
at page 322, it was stated as under '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 sovereignity of India, the democratic character of the
individual freedoms secured to the citizens. Nor has the Parliament the power
to revoke the mandate to build a welfare State and egalitarian society." Jaganmohan
Reddy, J. in the said judgment stated at page 517 as,under:
554
"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.
I do
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)
& (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:
(1)
Sovereign Democratic Republic;
(2)
Justice, social, economical and political;
(3) Liberty of thought, expression, belief,
faith and worship;
(4)
Equality of status and of opportunity.
Each
one of these is important and collectively they assure a way of fife to the
people of India 555 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." Palekar, J. in
the said judgment would say at page 619 "Since the 'essential features and
basic principles' referred to 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 the 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 no 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 556 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 no so as to touch
its core'. Apart from the difficulty in determining where the 'core of an
essential features' lies, it does not appear to be sufficiently realised 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 any body 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." Khanna, J. in the said
judgment at page 720 stated as under "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., Mathew, J. in the said judgment at page 827- 828 observed
"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 557 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.
I have
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 same 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 his
proclivity for a mixed form of government? If there was no consensus yesterday,
why expect one tommorow?" Commenting on this case and Golaknath's
decision, Subba Rao, Ex. C.J.I. in 'The two judgments : Golaknath and Kesavananda
Bharati" (supra) 558 says at page 18:
"The
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 Matthew, Beg, Dwivedi and Chandrachud, JJ. the funda
mental 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 that the entire
Constitution, except perhaps the bare machine of Government, could be repealed
by amendment." 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. They have no overall applicability permeating through the
entire Constitution that the absence of these provisions will change the nature
and character of the Constitution. While examining the question whether these
Articles constitute the basic structure, one must have regard to Article 363 of
the Constitution. They are made enforceable in a Court of law.
If
really they are to form basic structure, would not a corresponding right as
occurring under Article 32(4) have been provided? In Indira Nehru Gandhi's case
(supra), the following observations are found in para 663 :
559
"The preamble, generally, uses words of "passion and power" in
order to move the hearts of men and to stir them into action.
Its
own meaning and implication being in doubt,the preamble cannot affect or throw
fight on the meaning of the enacting words of the Constitution. Therefore,
though our Preamble was voted upon as is a part of the Constitution, it is
really "a preliminary statement of the reasons' which made the passing of
the Constitution necessary and desirable. As observed by Gajendragadkar, J.
in In
re Berubari Union v. Exchange of Enclaves, 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." 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.
Government
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." If the 26th 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's case (supra), 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 560 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 the 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..
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 tunes of times. It cannot be
denied that law cannot remain static for all times to come. The extract of
Matthew, J. in Kesavananda's case highlights this aspect as under :
"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.' Weems v. United States, 54 Law Edition 801 quoted in Francis Coralie
Mullin v. Administrator, Union Territory of Delhi & Ors., [1981] 1 SCC 608
at page 617 succinctly states the law on this aspect as under :
"Time
works changes, brings into existence new conditions and purposes. Therefore, a
principle, to be vital, must be capable of wider application than mischief
which gave it birth. This is peculiarly true of Constitutions. They are not
ephemeral enactments designed to meet passing occasions.
They
are, to use the words of Chief Justice Marshall "designed to approach
immortality as nearly as human institutions can approach it". The future
is their care, and provisions for events of good and bad tendencies of which no
prophecy can be made. In the application of a Constitution, therefore, our
contemplation cannot be only of what has been, but of what may be. Under any
other rule a 561 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
restrictive construction." (emphasis supplied) Robert S. Peck in "The
Bill of Rights & the Politics of Interpretation" states at page
316-317 as under :
"The
Constitution, then, is not a beginning nor an end, but part of a timeless
process.
Any
constitution "intended to endure for ages to come" (Mcculloch v. Maryland, 17 U.S. (4 Wheat) 316, 415(1819) 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
turn,-, That it is 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 traveling 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 of timeless character require translation into practical rules that
apply to their most modern 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.
Political
leaders and political institutions have played this roles 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 remained 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 562 degree as the
Courts. (Missouri, Kansas & Texas Rly Co. v. May, 194 U.S. 267, 270
(1904)). the Courts are insulated from the political winds that buffer,
motivate andsometimes disable a legislature. This independence from thelarger
political world is critical to discharge of the tasks 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" In the
words of the famous poet Jaames Russel Lowell New occasions teach new duties:Time
makes ancient good uncouth:
They
must upward stilt and onward, who would keep abreast of Truth." Nodoubt,
unity and integrity of India would constitute the basic structureas
laid down in Kesavananda's case (supra) but it is too far fetched aclaim to
state that the guarantees and assurances in these Articles have gone into the
process of unification and integration of the country. One cannot lose sight of
the fact that it was the will of the people and the urge to breathe free air of
independent India as equal citizens that brought
about the merger of these princely states. Therefore, the contention that the
Articles 291 and 362 facilitated the organic unity of India is unacceptable.
Next
as to the violation of Article 14, it is true as laid down in Bhimsinghji's
case (supra) 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's case (supra) can now be
extracted 563 "Further, the restriction under Section 27(1) in the absence
of any guidelines governing the exercise of the power on 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
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.
Section
27 is thus ultra vires and unconstitutional." Per Chandrachud, CJ. and Bhagwati
J. (Krishna 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
constrains mentioned in sub- section (1) of the Act.* (paras 5,8, &10) Per
Krishna Iyer, J (concuming) "I agree with the learned Chief Justice both
regarding the constitutionality of the legislation and regarding partial
invalidation of Section 27(1)." Per Seth J.
"Sub-sections
(1), (2) and (3) of section 23 and the opening words 'subject to the provisions
of sub-sections 564 (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.' Krishna lyer, J. stated in the said
judgment at page 186 as under :
"The
question of basic structure being breached cannot arise when we examine the vires
of an ordinary legislation as distinguished from a constitutional amendment.
Kesavananda
Bharati, 1973 Supp. SCR cannot be the last refuge of the Propreitariate when benigh
legislation takes away their 'excess' for societal weal. Nor, indeed, can every
breach of equality spell disaster as a lethal violation of the basic structure.
Perioheral 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 will 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 Bharati (supra) 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 per- 565 vasive
penury degrading all human rights or upholding of the legal luxury of perfect
symmetry and absolute 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 tight
the gaping gap between verbal velour 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." In this case, the amendment does not either treat unequals as
equals or in any manner violates Article 14. AD the privy purses holders are
treated alike by the withdrawal of all those privileges.
The
next aspect of the matter is can the Court go into the morality in withdrawing
these assurances and guarantees.
The
following extract from 'Law and Morality' by Louis Blom- Cooper Gavin Drewry at
page 2 is very useful :
"The
relationship between law and morals is in effect quadripartite, but it is only
the fourth part that engages our current interest.
The
first part is an historical and casual question. Has the law been influenced by
moral principles? No one doubts the answer is affirmative; conversely law has
influenced moral principle. 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 566 by the judiciary
(originally) for reasons having to do as much with property as with theological
morality). The statutory abolition of the crime of suicide in its turn
buttressed and affirmed the moral attitude.
The
second part questions whether law necessarily refers to morality at all; do
morals and law overlap in practice, simply because both share the common
vocabulary of rights and duties? It is here that the natural lawyers and legal
positivists have engaged most fiercely in controversy. The antagonists have
found temporary refuge in the sterile argument about whether law is open to
moral criticism..
Can a
rule of law, 'properly' derived (in constitutional terms) to be held to conflict
with some moral principle? Those who witnessed Parliament, through the vehicle
of the War Damage Act, 1965 reversing retrospectively the House of Lords'
decision in Burmah Oil Co. Ltd. v. Lord Advocate, (1965) AC 75 and thus
depriving a large cor- poration 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. Perhaps 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.' Then again, dealing with constraints on
Constitutional interpretation.bent Greenwalt in conflicts of fits of Law and
Morality' 1987 Edition states at page as follows impugned 'Like ordinary
legislation, constitutional provisions amendmentprotecting rights reflect the
moral judgments of those who whether adopted them in this case complex
judgments that certain coral activities should be put beyond the range of
control by the 567 Political branches of the government. In constitutions, as
in statutes, language may embody a compromise of competing moral claims, though
nothing in out federal Constitution resembles the relatively precise
accommodation of the criminal law rules governing use of force in selfdefence.
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 a foul of constitutional
restraints.
Widespread
agreement exists on the appropriateness of some other techniques of
interpretation. The point if 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 win rarely need to engage in any debatable moral evaluation.
Usually
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."
To the same effect, Michael J. Perry in 'Morality Politics and law" 1988 Edn.
states at page 129 as under :
'According
to the view of democracy that underlies originalities, 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 authorised
to do so by the legislative and executive branches. And it is illegitimate in
extremis for the undemocratic judiciary to oppose itself, in constitutional
cases, to the democratic branches and agencie s of government on the basis of
beliefs never constitutionality by the gratifiers." 568 Therefore, this
Court cannot concern itself with the moral aspect of the impugned amendment.
The impugned amendment is the will of the people expressed through Parliament.
In
view of the foregoing discussion these petitions Are liable to be dismissed.
Accordingly, these petition stand dismissed.
V.P.R.
petition dismissed.
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