RAGHUNATHRAO GANPATRAO ETC. ETC. v. UNION OF INDIA

The Judgments of the Court were delivered by

S. RATNAVEL PANDIAN, J. These two Writ Petitions call in ques- tion the constitutional validity of the Constitution (Twenty-sixth Amend- ment) Act of 1971 inter-a/ia, on the ground that it violates the basic F structure and essential features of the Constitution of India and is, there- fore, outside the scope and ambit of constituent powers of the Parliament to amend the Constitution as provided under Article 368 of the Constitu- tion. In addition, certain directions or suitable orders are sought for declaring that the petitioner continue to be the Rulers or the 'Successor G 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 bas led to the filing of these two Writ Petitions and the Interloculatory Applications 1 to 3 of 1992 in Writ H

p. 490 Copy page pinpoint

A Petition No. 351 of 1972, a synoptical resume of the case as adumbrated in Writ Petition No. 351172 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 Britisb B 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 C 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 D 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 E 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 F 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 ahy 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

RAGHUNATii v. U.0.1. (PANDIAN, J.) 491 purse as specified in the Merger Agreement (as amended by an order of A Government of India in 1956) free of tID<es, 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 B Talukas with a common executive, legislature and judiciary. The covenants inter-a/ia 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 frameworl< of convenants and of the Constitution of India. Each of the covenants was concurred in by C 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 cif India. It was decided in consultation with the Government D 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. E 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 H

In this Writ Petition, I.A. Nos. 1 to 3 of 1992 have been filed by Smt. E Kamakshidevi Yavaru, Smt. Vishalakshideviya(u and Smt. Inrakshi Devi, daughters of late Maharaja of Mysore.

The petitioner in Writ Petition No. 798/92 is the successor to the late His Highness Sri Jaya Chamaraja Wadiyar, Ruler of Mysore who had ruled F the State of Mysore from 8th September, 1940 onwards until 23rd January, 1950 when the Treaty/Agreement was made between the Government of India and His Highness the Maharaja of Mysore. This petitioner also challenges the Constitution (26th Amendment) Act of 1971 on the same grounds as in Writ Petition No. 351n2.

G Of the various grounds, the most notable is whether the impugned Act is beyond the constituent power of Parliament and whether it has altered, destroyed and damaged the basic structure and essential features of the Constitution. The object of the impugned Act whereby the Parlia- ment has omitted Articles 291, 362, inserted Article 363-A and substituted H a fresh clause (22) for the orig!nal under Article 366 of the Constitution

RAGHUNATH v. U.0.1. [PANDIAN, J.) 493 was to terminate the privy purses and privileges of the former Indian A Rulers and to terminate expressly the recognition already granted to them under those two deleted Articles. According to the learned counsel ap- pearing 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 ~d dignities is in violent breach of the power of B Parliament acting as a constituent body under Article 368 of the Constitu- tion inasmuch as it not only sought to amend the Constitutiton 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 c leading to the transfer of power and the integration of )Jldian 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. D 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 E 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 F 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 con- solidation.

The next step was to fit all these units into a common administrative G 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 neighbouring provinces and in some respects were ahead of them. But there were smaller States where, owing mainly to the H

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A 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 B 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 C 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, D External Affairs and Communications. The Rulers immediately after inde- pendence 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 E 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 F 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 con- sideration for the surrender by the Rulers of all the ruling powers and also for the dissolution of the States as separate units. G 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

RAGHUNATH v. U.0.1. [l'ANDIAN, J.] 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." B 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 c 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 D before and in large number of cases they could have continu~d 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, there- E fore, 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 seperate units. We would do well to remember that the British Government spent enor- mous amounts in respect of the Mahratta settlements F 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. G

Let us do justice to them; let us place ourselves in their position and then assess the value of their sacrifice. The Rulers have now discharged their part of the obligations by transferring all ruling powers and by agreeing to the H

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A 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."

B The constitutional provisions of Articles 291 and 362 which are now deleted by Section 2 of the impugned Constitution (Twenty-sixth) Amend- ment Act as they stood, read as follows :

"291-f'ri>y purse sums of Rulers c (1) Where under any covenant or agreement entered into by the Ruler of any Indian State before the commence- ment 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- D (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. E (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 F 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.

G 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

. RAGHUNATH v. U.0.1. (PANDIAN, J.] 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. B Unamended 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 c 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 D "Ruler" means the Prince, Chief or other persori 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 recog~ E nized 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 : F 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 othe! person who, at any time G before the commencement or the Constitution (Twenty- sixth Amendment) Act, 1971 was recognized by the Presi- dent 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 H

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A 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 B 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.

C 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 ~ D 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 E getting all the Rulers within the fold of the Constitution, and that the ~ deletion of these Articles bas 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 af- firmed by making the privy purse an expenditure charged under the F 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 pet111anent G feature of the Constitution reflecting the intention of the foundiiig fathers of the Constitution and as such these two Articles should have been kept intact. According to the learned counsel, the deleti0'1 of these Articles amounted to a grciss breach of the principle of political justice enshrined in the preamble by1 del>itving or taking away from the princes the privy purses which were given io them as consideration for surrendering all their H sovereign rights and contributing to the unity and integrity of the country

.. RAGHUNATII v. U.O.l. [PANDIAN, J.] 499 and that the deletion of these Articles by the impugned Amendment Act 1 A is arbitr<\fY, unreasoable and violative of Article 14 of the Constitution. Further it bas 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 fundamen- tally different from the Bharat that came into being. D 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 uncon- stitutional, n.ul~ 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 Articles E 291 and 362 when incorporated were intended to grant recognition to the solemn promises on the strength of which the former Rulers agreed to merge with the Indian Dominion and the guarantee of privy purses and certain privileges was as a just quid pro quo for surrendering their sovereignty and dissolving their States. It bas been stated that the constitu- F tional guarantees and assurances promising continuance of privy purse as • enshrined in the Agreements and Coevnants 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 oplliion or buried under acts of States, but the impugned Act, a fade, has abolished and destroyed those constitutional provisions G of Articles 291 and 362 affirming the guarantees and assurances given to the Rulers under those agreements. To highlight the significance of those agreements whereby the Rulers were persuaded to sign the instruments, the statement of Sbri V.P. Menon who was closely connected with the annexation of the princely states and the .speech 'of Sardar Vallabhbbai H

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A 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 guaran- tees of Privy Purse, privileges etc., were perfectly in keeping with the B 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 determin- e ing that the said guarantees and assurances have come to stay as an integral and untouchable part of the basic structure of the Constitution.

Fmally, it was said that there can be no basic structure of a Constitu- tion divorced from the historical evolution of the precepts and principles D 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 E 366 (22) in the Constitution framed by them would, without any doubt or . -1 dispute, emerge in their own rights 'as basic features' of the Constitution which cannot be abrogated or annihilated by any Constitutional amend- ment. What he finally concluded is that the guarantees and as~urances of the privy purses, privileges etc. contained in the above three Articles were, F in fact, the reflections of the aforesaid virtues of the Constitution makers which are the very virtues which characterized the personalifY of the Indian Constitution and that the Objects and Reasons of the impugned Amend- ment clearly establish the mala fides of the Amendment.

Mr. A.K Ganguly, the learned senior counsel appearing in IA. No. G 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 H would be as passed and adopted by the Constituent Assembly of India. On

RAGHUNATI1 v. U.0.1. (PANOIAN, J.) 501 the following day, namely, 26th November, 1949, the Constituent Assembly A 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 B 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 Constitu- c tion. 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 D 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 Constitu- tion. E Mr. R.F.. Nariman, the learned counsel appearing in I.A. No. 1 of 1992 in Writ Petition No. 351 of 1972 adopted the arguments of the other counsel and contended that the erstwhile Rulers of the princely states formed a class apart in that there is a real and substantial distinction between them and the citizenary of India. In this context, he referred to F 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 'paine 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 G the erstwhile Princes formed a class apart. When such was the position, according to the learned counsel, the impugned Amendme~t which violates the basic structure of the Constitution is unoonstitutional. He cited certain decisions in support of his arguments that the Amendment Act is violative of the essential features contained in Articles i4 and 19(1)(1). H

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A 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. 351n2 added that these two Articles were not at all amendable on the principle of prohibition against impairment of the contract obligations, a principle recognised in Section 10, Article 1 of the Constitution of the United States of America. The same principle is incorporated in the Indian Constitution in the shape of Articles 362 and

291. According to the learned counsel, the impugned Amendment Act is an ugly epitome of immorality perpetrated by the Indian Parliament, that, -..I._ 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 amend- ing powers of the Parliament. He further stated that the equality elause 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 socio-economic 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. E 4 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 F 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 G 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 · H a policy objective or the directive principles of the Constitution. That being

RAGHUNATH v. U.0.1. [PANDIAN, J.) 503 so, the theory of sanctity of contract or unamendability of Articles 291 or A 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. Saganna/, [1965) 3 SCR 201 wherein B 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 sanc- tions and not under a right legally enforceable in any c 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." D

Furhter it has been observed in the above case :

". . . . . . . .it must be held that the amounts of the privy purse are not liable to attachment or sale in execution of the respondent's decree.''

Before embarking upon a detailed discussion on the various facets · of the contentions-both factual and legal - we shall deal with the 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 agreements 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 G 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) H

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A Defence, (2) External Affairs and (3) Communications, their contents being defmed 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 estab- B lished 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 c second phase involved a process of two-fold integration, the consolidation of States into sizeable administrative units, and their democratization. Though high walls of political isolation had been raised and buttressed to prevent the infiltration of the urge for freedom and democracy into the Indian States, with the advent of independence, the popular urge in the D States for attaining the same measure of freedom as was enjoyed by the people in the Provinces, gained momentum and unleashed strong move- ments 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 E not in an uniform pattern in all cases. Firstly, it followed the merger of ~ States in the Provinces geographically contigous 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. F Sardar Vallabhbhai Patel had a long discussion with the R ulcrs 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) 2.16 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 G of States. Thus, totally 552 States were affected by the integration schemes.

Reference may be made to (1) the Report of the Joint Select Com- Ao' mittee on Indian Constitutional Reforms (1933-34), (2) the Report of the Expert Committee headed by Nalini Ranjan Sarkar, published in Decem- H ber 1947, (3) The Indian States' Finances Enquiry Committee chaired by

RAGHUNATH v. U.0.1. (PANDIAN, J.] 505 Sir V.T. Krishnamachari appointed on 22nd October, 1948 the rccoMmen- A dations 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 convenants 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 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!freaty on 23rd January, 1950. Under the merger Agreement, the Maharaja of E 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 ex- · G ecuted by other Rulers of various States.

While, it was so, in 195C 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 Constitu- tion. Accordingly, Rulers continued to enjoy the said benefits upto 1970. H

506 SUPREME COURT REYOKIS (1993) 1 S.C.R. A On 14th May, 1970, the Constitution (Twenty-fourth Amendment) Bill, 1970 for abolition of the above said privy purse, privileges etc. con- ferred under Article.s 291, 362 and 366 (22) was introduced in the Lok Sabha by the t~en Finance Minister, Shri Y.B. Chavan. The Bill contained three caluses and a short statement of Objects and Reasons. The state- ments reads thus : B "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 c 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 --f· D 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 E 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. F An eleven-Judges Bench of this Court by its Judgment dated 15th Decem- ber 1970 struck down the Presidential Order being illegal, ultra vires and inoperative on th~ 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. x Subsequently, Parliament enacted a new Act entitled the Constitution H (Twenty-Fourth Amendment) Act, 1971 on receiving the ratification by the

RAGHUNATII v. U.0.1. [PANDIAN, J.) Legislature of lI"'States. It received the assent of the President on 5th A N0vember, 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 re-numbered as cla~e (2). The marginal heading to that article was substituted namely 'Power of Parliament to amend the Constitution and procedure therefor" B 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 up<in such assent being lo the Bill", the words "it shall be presented to the President who shall give his assent lo the Bill and thereupon" was sub- stituted. After the re-numbered clause (2), clause (3) was inserted, namely C "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. ' Aniendment) Act, 1971 by substitut- · F ing 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 318 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. G

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 H

508 SUPREME COURT REPORT!' (1993] 1 S.C.R. A of India States to cease and privy purses to be •\loolisbed". 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 impll811ed Twenty-sixth Amendment was brought into force B w.e.f. 28th December, 1971, the present writ Petition No. 351 of 1972 was filed on 24th August, 1972 for declarations that the Twenty-fourth, Twen- ty-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 C for a Writ or order directing the respondent to continue to pay privy purse to the petitioner. Another Writ Petition No. 352 of 1972-was filed by H.H. Nawab Mohammed Iftikhar Ali Khan of Malekotla seeking same relief as in Writ Petition No. 351 of 1972.

D 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 Kera/a and Another was pending before this Court.

E Wben 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 F 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 Peti· tions to be heard on the 23rd October,1977.. Written G arguments dispensed with."

A thirteen-Judges bench of this court in Kesavananda Bharati v. State of Kera/a, (1973] 4 SCC 225 heard some writ petitions along with these two writ petitions and gave its conslusions thus :

H "The view by the majority in these writ petitions is as

RAGHUNA'JH v. U.0.1. [PANDIAN, J.j 509 follows: A

1Copy pinpoint1. Golak Nath's case is over-ruled;

2Copy pinpoint2. Art. 368 do.es not enable Parliament alter the basic structure of framework of the Constitution; B

3Copy pinpoint3. The Constitution (Twenty-fourth Amendment) Act, 1971 is valid; '

4Copy pinpoint4. Section 2(a) and (b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid; c

5Copy pinpoint5. The first part of Section 3 of the Constitution (Twen- ty-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. D

6Copy pinpoint6. The Constitution (Twenty-ninth Amendment) Act, 1971 is valid.

The Constitution Bench will determine the validity of the Constitution (Twenty-sixth Amendment) Act, 1911. in ac- E cordance with law.

The cases are remitted to the Constitution Bench for disposal in accordance with h:.w. There will be no order as to costs incurred up to this stage." F In pursuance of the said Order, Writ Petition No. 351of1972 is now before this Constitution Bench for determination of the constitutional validity of the Twenty-sixth Amendment Act in acco•dance with the law laid down in Kesavananda Bharati. G Since the constitutional validity of the same Twenty-sixth Amend- ment 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 Con- stitution, Dr. Arnedkar said, "One can, therefore, safely say that the Indian H

510 SUPREME COURT REPORTS (1993) 1 S.C.R.

A federation will not suffer from the faults of rigidity or legalism. Its distin· guishing feature is that it is a flexible federation." Dr. Wheare in his modem Constitution has commended that it 'strikes a good balance by protecting the l'ights of the State while leaving remainder of the Constitution easy to amend." Our constitution is amendable one. In fact, till now Seventy-two B 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 India, (1952) SCR 89 but the Supreme Court unanimously upheld the· validity of the Amendment. c 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 + D 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 Ill that it would be difficult to think that they E 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 Fun- damental 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. F The concerns of the two dissenting learned Judges came before an eleven-Judges Bench of this Court in Go/ak 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 -< from 1951, another from 1955 and another from 1964. Therefore, this Court in order to avoid any catastrophe that would have ensued in the social and economic relations, had the Court ruled that the amendments were void

RAGHUNATII v. U.0.1. [PANDIAN, J.] 511 ab inilio, relied on American cases and adopted the doctrine of prospective overruling which was construed to enable the Court to reverse its prior decisions, to continue the validity of the three amendments in issue, and to declare that after judgment the Indian Parliament would have no power to amend or abridge any of the Fundamental Rights. Therefore, intending to override the ruling in Gotllk Nath 's case, the (Twenty-fourth Amendment) B 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, (1%7] 2 SCR 762, the Supreme C 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 D necessary to do so· for the attainment of the objectives set out in the Preamble to the Constitution. The Act, there- fore, 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 E 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) io Article 31 and added Article 31C. These F . amendment acts, namely, twenty-fourth and twenty-fifth besides twenty- ninth Amendment Act and the continuing validity of the dictum laid down in Golak Nath 's case, were the subjects for decision in Kesavananda Bharati. Though Writ Petition No. 351 of 1972 challenging the twenty- fourth, twenty-fifth and twenty-sixth Amendment Act was also listed along G with other writ petitions in Kesavananda Bharali, the constitutional validity of the twenty-sixth amendment was left over for determination by a Con- stitution Bench.

We shall now proceed to examine the constitutional validity of the ampugned Amendment Act. H

512 SUPREME COURT REPORTS (1993) 1 S.C.R.

A The question whether Article 291 is a promion 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 ~dayatullah, CJ in his separate concurring judgment in Madhav Rao and B they are 3nswered in the following terms :

'The Article when carefully analysed leads to these con- clusions: 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- c come. It narrows the guarantee of the Dominion Govern- ment 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 guaran- teed 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 Agree- ments 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." F (emphasis supplied)

Shah, J speaking for the majority with reference to the covenants and agreements made the following observation :

G "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)

RAGHUNATH v. U.0.1. [PANDIAN, J.) 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 B 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 Ar- C tides 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 Con- D stitution 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 supplernentary 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 E express or implied - on the amending power which inhers in the Constitu- tion 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 F Democracy' while explaining what 'amendment' means has stated : 11 Thus an amendment corrects errors of commission or omission·, modifies the system without fundamentally changing its nature - that is an amendment operates within G 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 Cons6tution under the heading "Amending of the Constitution". H

514 SUPREME COURT REPORTS [1993) 1 S.C.R.

A 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 te 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 amend- B ment 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 c 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 D insert a new article thereill 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 E as regards the power vested in the Parliament and the limitations - either express or implied or inherent therefor to amend the Constitution. 1 In Kesavananda Bharati, the Supreme Court upheld the validity of the twenty-fourth Amendment. Of the 13-Judges, Shelat, Hedge, Grover, F Jagmohan Reddy and Mukherjea observed that the Twenty-fourth Amend- ment 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 • -1 power originally conferred thereunder. Ray, J said that the Twenty-fourth Amendment made explicit what the judgment in Shankari Prasad and the G majority judgment in Sajjan Singh and the dissenting judgment in Go/ak 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.

H According to Khanna, J. the non-obstante clause (1) has been in-

RAGHUNAIB v. U.0.1. [PANDIAN, J.] 515 serted in the article to emphasise the fact that the power exercised under A J_~· 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 B 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 Go/ak c Nath. Sikri, CJ. elaborating the above theme has observed that the Twen- ty-fourth Amendment, insofar as it transfers power to amend the Constitu- tion 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 D 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 E 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 bai;ic structure or framework or •he Con· stitution 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. H

516 SUPREME COURT REPORTS 11993] 1 S.C.R. A 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 en•Htled to B receive their privy purses from the revenues of the Union and that it would be free from all truces.

As we have indicated above there were multiple sequence of events in the historical evolution which necessitated the India.n Rulers to enter into various agreements and ultimafoly to agree for integration of their C 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 D 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. E The agreements entered into by the Rulers of the States with the Government of India were simple documents relating to the accession and 11 the integration and the nassurances and guarantees given under those documents were only for the fixation of the privy purses and the recognition F of the privileges. The guarantees and the assurances given under the Constitutioo were independent of those documents. After the advent of the Constitution, the Rulers enjoyed their right to privy purses, private proper- ·+ ties arid privileges only by the force of the Constitution and in othe.r respects they were only ordinay citizens of India like any other citizen, of course, this is an accident of history and with the concurrence of the Indian G people in their Constituent Assembly. • Therefore, there cannot be any justification in saying that the guaran- V tees and assurances given to the Rulers were sacrosanct and that Articles 291 and 362 reflected only the terms of the agreements and covenants. In H fact as soon as the Constitution came into force, the Memoranda of

RAGHUNATH v. U.0.1. [PANDIAN, J.] 517 Agreements executed and ratified by the States and Union of States were A embodied in formal agreements under the relevant Articles of the Con- stitution 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 B 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 C 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 fundamen- D tally 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 r--- arguments on three decisions of this Court, namely, (!) Waman Rao and E 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 F Amendment Act is beyond the constituent power of the Parliament since it has damaged the basic structure and essential features of the Constitu- tion.

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 G to be permanent or could be deleted or ame.nded 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: H

518 SUPREME COURT REPORTS (1993] 1 S.C.R.

A "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 indicia of the intention of the Constituent Assembly to give a permanency to the basic feature of the Constitution." B 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 io state that the fact that 'assurances and guarantees" had been insulated against every future constituent inroad or legislative incursion of Par- liamentary 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 stati'lg 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 coferred on the Rulers were not on temporary basis and as such they are not liable to be varied or repudiated. F 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. -(~

G 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 respon- H sibilities of upholding the supremacy of the Constitution. An amendment

RAGHUNATH v. U.0.1. [PANDIAN, J.] 519 of a Constitution become ultra vires if the same contravenes or transgresses A ..... 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 B 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 c - 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 -r basic structure or loss of its original identity and character and render the D · 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 E 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 F Sajjan Singh and has been thereafter developed by this Court in a line of -::-,s 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) 1SCC147.

G 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 constitu- ~ tional scheme which otherwise would mean the 'essential part of the constitutional scheme', referred to Webster New International Dictionary, 3rd Edition and Collins Concise i:;:nglish Dictionary, and has pointed out the lexical meaning say, that 'integral' means 'essential' and, therefore, H

520 SUPREME COURT REPORTS (1993] 1 S.C.R.

A 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 M adhav 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 nugatory certain rights guaranteed in the Constitution, then existing. It is further stated that the attack on the D Twenty-sixth Amendment based on the principles laid down. in Madhav Rao is totally misconceived becuase only in order to overcome the effect of that judgment, the Twenty-sixth Amendment was passed by the Parlia- ment in exercise of its constituent powers. According to the Attorney General, the observations in the said case were nullified by the Amendment E 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. F After the commencement of the Constitution, in pursuance of Article 366(22), the Rulers were recognised and they had been enjoying the Privy :('- purses, privileges, dignities etc. on the basis of the relevant constitutional provisions. Pursuant to the resolution passed by the All India Congress G Committee in 1967, the Union of India introduced the Twenty-fourth Amendment Bill in 1970 to implement the decision of the All India Congress Committee favouring removal of privy purses, privileges etc. But the Bill though passed in the Lok Sabha failed to secure the requisite majority in the Rajya Sabha and thereby it lapsed. It was only thereafter, the President of India issued an Order in exercise of the powers vested in H him under Article 366(22) derecognising the Rulers and stopping the privy

RAGHUNATH v. U.0.1. (PANDIAN, J.) 521 purses, privileges etc. enjoyed by the rulers. This Order passed by the A 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 beeen retie~ upon by Mr. B Soli J. Sorabjee, were made. The Twenty-sixth Amendment itself was passed by Parliament to overcome the effect of this judgment. Now by this Amendment, Articles 291 and 362 are omitted, Article 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 C 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 Twen· D ty-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 Amend· ment was brought on being felt necessary. E