RAGHUNATHRAO GANPATRAO ETC. ETC. v. UNION OF INDIA

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 constitu· tional scheme' and that "institution of Rulership · is an integral part of the constitutional scheme", must be read in their proper context. That was a F 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 Presiden!jal 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. G It is clear that the learned Judge used the. words 'integral part' in their ordinary connotation · not in any lexicographical sense. Ordinarily speak- · ing, 'integral' means 'of a whole or necessary to the completeness of a whole' and as "for111ing a whole" (Concise Oxford Dictionary). Our Con· stitution is not a disjointed document. It incorporates a particular socio· economic and political philosophy. It is an integral whole. Every provision H

522 SUPREME COFRT REPORTS (1993] 1 S.C.R. A 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 B 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. c 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 D of Articles 14, 19(1)(1) and (g), 21, 31 (1) and (2) of the Constitution. Evidently this contention has been raised in the year in 1972, that is long before the Constitution (Forty-fourth Amendment) Act of 1978 was passed w.e.f. 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)(1) E 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 Amenement, 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 F respect of that right guranteed in the then Article 31, Article 30 (IA) 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 G 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 fundmental right can be amended or altered provided the basic structure of the Constitution in any way is not damaged.

H Permanent retention of the privy purse and the privileges of rights

RAGHUNATH v. U.O.l. [PANDIAN, J.] 523

would be incompatible with the sovereign and republican form of Govern- A ment. 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 B of clause 22 of Article 366 by which the recognition of the Rulers and payment of privy purse a~e 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 eC<lnomic, 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 C 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 fee.I 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 muchless inconceivable. We F 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 G 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 : H

524 SUPREME COURT REPORTS [1993] 1 S.C.R.

A '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 : B 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 C 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 D 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 E made thei.r .sacrifices for which they were given ju't compensation and assured permanent payment of privy purses. What was given to the Rulers was a political pension a' rightly pointed out in Usman Ali's 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. There- F fore, 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 G 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 H Constitution. According to him,. the equality clause as interpl'eted by this

RAGHUNATH v. U.0.1. [PANDIAN, J.] 525 Court in (1) Maneka Gandhi v. Union of India, [1978] 2 SCR 621, (2) R.D. A Shetty v. International 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 indispen- sable feature of the Constitution and destructioll thereof will amout !o B 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 ihe 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 C .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 D 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 follow- E ing 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 F '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 unfor- G tunate 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 resc.urces were available, which would bring into focus far H

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

A 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. f311 for a positivist concept of law is to B 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 c definition alluded to above. Professor Hart's concept, however, is of 'legal system', which is a continuing phenomenon.

D 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

RAGHUNATif v. U.0.1. [PANDIAN, J.) 527 of his life, all his relations with his fellows. Legislation A cannot do this; and, if it could, it ought not to exercise a continual interference and dictation over the conduct of~en. 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 B the community which legislation ought not to command. There are also many injurious actions which it ought not to forbid, although mor.ility does so. In a word legislation has the same centre with morals, but it has noi-the same circumference." c Reference may also be made to Krishna Kumar v. Union of India, (1990) 4 sec 201.

The above passages remind us of the distinction between law and morality and the line of demarcation which separates morals from legisla- D tion. 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. E

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 F Constitution scheme.

- '3: 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 G 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 will arise only when there is a change in the form, character and content of the Constitution. In fact, in the present case, the identity of the Constitution even on the tests proposed by the counsel of H

528 SUPREME COURT REPORTS [1993] 1 S.C.R.

A 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 B 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 Constitu- tional guarantee. He has drawn strength in support of his above argument from the decisions in Md. Usma11 & Ors. v. State of Andhra Prades/1 & Ors, [1971) Supp. SCR 549 and Ramesh Prasad Singh v. State of Bihar & Others, C [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 D 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' E 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 measuro, 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 H where there are ~veral distinct and differing interests brought together

RAGHUNXl"H v. U.O.L iPAND!AN. Jj 529 and harmonised by the Constitution makers by assuring each Section, class and society, preservsation of certain political, cultural and .-..ocial 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 trihals 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 362 which are the c 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 D Articles 291, 362 and by insertion of Article 363A and amendment of clause (22) of Article 366. We have already answered this question in the negative observing that the basic structure or the essential features of the Constitu- tion 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. G For all the 'aforementioned reasons, both the Writ Petitions as well as the connected I. 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 H

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

A 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 )I:: - arising, in accordance with law and in the light of this judgment upholding the Constitutional validity of the impugned Amendment Act. B MOHAN. J. I had the advantage of perusing the judgment of my !earned Brother Ratnavel Pandian, J. Tliough I am in respectful agree- ment with him having regard to the importance of the constitutional issues involved in this case, I would like to add the following:

C 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 D an age ends and when the §Olli of nation long suppressed, finds utterance."

With the advent of freedom, India had to face problems of highest magnitude. Of the many probhnes three were most pressing and urgent. E 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.

F 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 Bdtish Power the paramountcy lapsed to the princes. .They could decide either to join India or Pakistan or even to stay independent. Sardar Vallabhbhai Pate~ 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 anarcl)y and diplomatic persnasion. An invitation was extended to all the rulers of the State to work through the Councils of

RAGHUNATif v. U.0.1. [MOHAN, J.] 531 Constituent Assembly for the common good of all. A 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 dear that the idea of separate Constitutions being framed for B 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 -liscussed 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 c 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 represent:aives there, sat as conqueror and conquered, as those who ceded and as those who absorbed, as sovereigns or their plenipotentiaries contracting aiiiances 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 democractic 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 F hammered out for themselves a new Constitution in which all were citizens, in a new order having but one tie, and owing but one allegiance, devotion, loyalty, fidelity, to the Sovereign Democratic Republic that is India as was eloquently stated by Justice Bose in Virendra Singh and Others v. State of Uttar Pradesh, AIR 1954 SC 447 at p. 454: G " At one Stroke all other territorial allegiances were wiped out and the past was obliterated except where exi)ressly preserved; at one moment of time the new order was born with its new allegiance springfi,g from the same source for all, grounded on the same basis; the sovereign will of the H

532 SUPREME COURT REPORTS [1993] 1 S.C.R.

A 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:

B At page 115 it is said:

"With the inauguration of the new Constitution the merged States have lost all vestiges of existence as separate en- tities11

c and at page 130:

"The new Constitution of India gives expression to the changed conception of Indian unity brought about - by........ the unionisation of states ........"

D and at page 131:

"Unlike the scheme of 1935 the new Constitution is not an a.liance betweeen 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, E 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 F Constitution therefore finally eradicates all artificial bar- riers 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 G 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 H immunities and were given generous privy purses. It was in this context

RAGHUNATII v. U.0.1. [MOHAN, J.] 533 Articles 291 and 362 were brought into the Constitution. A

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 B 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 C 32 of the Constitution of India. In H.H. Maharajatlhiroja 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- D Sixth Amendment to the Constitution was introduced. The following tabu- lated statement will bring out the legal postition as is obtainable after Twenty Sixth ~endment. Articles before Articles after 26th Amendment 26th Amendment E Article 291 : 291. (Privy purse sums of Where under any covenant or Rulers) Rep. by the Constitution agreement entered into by the Ruler (Twenty-sixth Amendment) Act, of any Indian State before the 1971, Section 2. 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. H

534 SUPREME COURT REPORTS [1993] 1 S.C.R.

A Article 36'2: 362. (Rights and µrivileges of Rulers In excrc 'sc of the power of of Indian States). Rep. by the Parliament or of the Legislature of a Constitution (Twl'nty Amendment) State to make laws or in the exercise Act, 1971 Section 2. of the executive power of the Union or of a State, due regard shall be had B to the guarantee or assurance given under any such covenant or agreeable as is referred in article 291 with respect to the personal rights, privi-leges and dignities of c the Ruler of an Indian State. 363-A. Recog11i1 ion granted to Rulers of Indian Slates to cease and privy purses to be c,holished-

D N owithstanding 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, E 1971, was recognised by the ~- President as the Ruler of an Indian State or any person who, at any time before such commencement, was recogn\sed by the President as the F successor of s!lch 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 G Amendment ) Act, 1971, privy purse is abolished and all rights, liabilities and obligations in respect of privy purse are extinguished and accor- dingly the Ruler or, as the case may H

RAGHUNATII v. U.0.1. [MOHAN, J.] 535 be, the successor of such Ruler, A referred to in clause (a) or any other person shall not be paid and sum as privy purse. Article 362(22): "Rulers" means the Prince, Chief or "Ruler" In relation to an Indian State other person who, at any time B means the Prince, Chief or other before the commencement of person by whom any such covenant the Constitution (Twenty-sixth or agreement as is referred to in Amendment) Act, 1971, was clause ( i) of Article 291 was entered recognised by the President as into and who for the time being is the Ruler of an Indian State or any person who, at any time C ... recognised by the President as the Ruler of the State, and includes any before such commencement, person who for the time being is was recognised by the President recognised by the President as the as the successor of such Rulers. successor of such Ruler. D The validity of this amendment was challenged which came up for consideration in His Holiness Keasavananda Bharati Sripadagalavaru v. State of Kera/a, [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 ac- E cordance 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 F Madhav Rao's case (supra) makes the following submissions.

Articles 291 and 362 embodied and guaranteed pledges to the Rulers. They arc based on elementary principles of Justice. The underlying purpose of these articles was to facilitate stabilization of the new order and G 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. H

536 SUPREME COURT REPORTS (19931 I S.C.R. A ··integral" means essential. Such a provision, therefore, could con- stitute 1he basic feature of the Constitution. Conseqently, the total abolition ,.. of tl1csc provisions of Constitution would necessarily damage its essential or basic feature.

Therefore, if the amendment damages the basic or an cs:;cnti,11 B fea1 urc· .,r the Cunstitulion it would be beyond the constituent power of the Parliament as laid down in Wama11 Rao a11d others v. Unio11 of India a11d ot/Jas. ( 19801 3 SCC 587 @ 588-89 as also in Maharao Sahib Shri Blrim .-J_ Sing/Jji v. U11io11 of India & Ors., (1981] 1 SCC 166 @ 212.

C The correct approach is to examine in each case the place 11f the particular feature in the scheme of our Constitution, its object and purpose as was held in Indira Nehru Gandhi v. Raj Narai11's case, (1975] Suppl. sec P"gc 1 @ 252. It was by the incorporation of Articles 291 and 362 that the Constilu- + D tion makers were able to get the willing consent and cooperation of the Rulers lo 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 E and Assemblies and the Lok Sabha and Rajya Sabha would be radically ~ different.

The learned counsel seeks to emphasise the nature and the character of guarantees contained in Articles 291 and 362. When they came to be incorporated it was nothing more than the statutory recognition to the F 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. G 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.

RAGHUNATH v. U.0.1. [MOHAN, J.] 537 One of the tests of identifying the basic feature is, whether the identity of the Constitution has been changed. As laid down in Kesavanan- da 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 nn the basic structure. It is enough if it damages the essential feature as laid down in Indira Nehru Ga1uihi'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 C 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. D 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 generat;ons. By the impugned amendment the solemn promise is breached. E 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 F stated period, would the Parliament have intended to amend the law? If that was the intention of incorporation of these provisions in the Constitu- tion, the amendment would run counter to such an intention and therefore, cannot be supported.

Article 14 guarantees equality which forbids unfair treatment. Where G 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 H

538 SUPREME COURT REPORTS [1993] 1 S.C.R.

A [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.

B 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 + D gathered from Kesavananda Bharati Sripadagalvarn's case (supra), par- ticulary, the passages occurring at l'aras 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. E That provision lists the immunities of foreign rulers. That was challenged as -..;- violative of Article 14 of the Constitution. That challenge was repelled in Mohan/a/ Jain v. His Highness Maharaja Shri Swai Man Singhji, [1962] I 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 F 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 Trost &Anotherv. 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 ad- vanced 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

RAGHUNATH v. U.0.1. (MOHAN, J.) 539 creating the constitutional documents for all citizens including those of the A . native states. The history of the development relating to the merger agree- ments and the framing of the Constitution clearly shows that it is really the union of the people of the native states with the people of the erstwhile British India. The instruments of accession are the basic documents and not the individual agreements with the rulers. Therefore, to contend that B 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. C The covrnants arc political in nature and no legal ingredients as the basis caa be read into these agreements as laid down in Usman Ali Khan v. Sagar Mal, (1965] 3 SCR 201. + The guarantees in Articles 291 and 362 are guarantees for the D 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 E . 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 F 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 sacrifies of the rulers. By no means, can it be contended that these guarantees given to the rulers were ever intended to be con- G tinued indefinitely.

Turning to basic feature, the proper test for determining basic fea- ture 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 H

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

A 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 B 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. c The 26th Amendment does not in any manner amend the Constitu- tion 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 + D 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 E 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

pr - RAGHUNATII v. U.0.1. [MOHAN, J.] 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 fundamen- tal right. Hdnce, it cannot. be called a basic structure at all. As to what is the meaning of basic structure, reforence 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 ot India in (1973] 2 SCC page 1 journal section entitled as "The two judgments: Golaknath and Kesavananda C Bharati 11

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. D 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). /

E 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 F 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 G case (supra) since these have been held to be fundamental rights guaran- teed 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 H

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

A basic or essential feat;ire of the Constitution ?

The law prior to and after 26th Amendment has already been set out in the tabulated statement. As coulj 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 origind c:ause 22 of Article 366 has co!De to be substituted by a new clause. In pith and substance, this amendment seeks to terminate the privy purses and privileges of the Princes 0 f !he 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 impugneJ amendment has withdrawn the guarantees and ilssurances and abolished the privy purses, personal rights, privileges and dignities. The validity of the amendment is attacked as under:

(i) Articles 291, 362 and 366(22) of the Constitution form an impor- tant 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 aflirrned by making the privy purses an expenditure charged upon the consolidated fund of India. Such E being the position, a breach of the covenant cannot be made since they were intended lo incorporate a just quid pro quo which has come lo be -{- nullified by the impugned ame.ndment.

(iii) It is arbitrary and unreasonable and is, therefore, violative of Article 14 and consequently basic structure. F (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 incurporated in the Constitu- G tion. II 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

RAGHUNATII v. U.0.1. [MOHAN, J.] 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 laws sitting together as friends than to make treaties as aliens. I invite my friends, the Rulers of States and their people to the councils of the Constituent Assembly in this spirit of friendliness and cooperation in a joint endeavour, inspired by common allegiance to our motherland for the common good of us all.

We are at a momentous stage in the history of India. By common endeavour, we can raise the country to a new c 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 relation- ship 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 spokr on 13th November, 1947:

"The State does not belong to any individual. Pararnountcy 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.' G In this connection, it is worthwhile to quote the following from 'The framing of India's Ciinstitution" by B. Shiva Rao at page 520 as under :

'The Indian National Congress was in the past well- known for its sympathy with the Indian States People's Conference, a body which sought to establish popular H

544 SUPREME COURT REPORTS [1993] 1 S.C.R.

A governments in the States. Jawaharlal Nehru himself was closely associated with this movement. The start of the proceedings in the Constituent Assembly was not par- ticularly propitious for cooperation between the Assembly and the Rulers. Moving the Objectives Resolution on December 13, 1946, in the Constituent Assembly (in which B 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 c 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." D The political background in which the Articles came up to be incor- porated 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 E 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. F 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 G 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 Proce- dure implies periodical payments of money by the Govern- H ment to the pensioner. See Nawab Bahadur of

RAGHUNATH v. lJ.0.1. [MOHAN, J.] 545 Mursl1idabad v. Kamani Industrial Bank Ltd., (4) 1931 LR A 58 IA. 215, 219 & 220 and in Bishamber Nath v. Nawab -IL Imdad Ali Khan, 1890 L.R. 17 I.A. 181, 186, Lord Watson observed:

"A pension which the Government of India has given B a guarantee that it will pay, by a treaty obligation con- tracted 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.' c Now, the history of the integration· and the ultimate ab- sorption 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 D 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 In- dian States parted with their sovereignty in successive E -'!- stages, firstly on accession to the Dominion of India, secondly on integration of the States into sizeable ad- ministrative 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 F and Unions of States. During the second phase .of this ~~ political absorption of the States, the Rulers of the Mad- hya Bharat States including the Ruler of Jaora State entered into a Covenant on April 22, 1948 for the forma- tion of the United State of Gwalior, Indore and Malwa (Madhya Bharat). By Article II of the Covenant, the G 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 administ<ation of the State to the Rajprarnuckh and thereupon all rights, authority and juris- H

546 SUPREME COURT REPORTS (1993) l S.C.R. A diction belonging to the Ruler and appertaining or in- cidental 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 B Covenanting State in Schedule I." In Schedule I, 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 c 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 advence. Article XI( 4) provided that the amount would be free of all taxes whether imposed by the Government of the United State or by the Government of India. Article XIII of the Covenant secured to the ruler of each Covenanting State all personal privileges, dignities and titles then enjoyed by them. Article XIV guaranteed the succession, according to law and custom, to the gaddi of each Covenanting State and to the personal rights, privileges, dignities and titles of the Ruler. The covenant was signed by all the Rulers of the covenanting state. At the foot of the Covenant, it was stated that "The Government of India 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, G 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 commence- H ment of this Constitution, the payment of any sums, free

,._. RAGHUNATII v. U.0.1. [MOHAN, J.) 547 of tax, has been guaranteed or assured by the Government A 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 (b) the sums so paid to any Ruler shall be exempt from 11 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 c 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 D 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 not- withstanding anything contained in the Constitution, the E -'r 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 F relating to any such covenant. Article 366(22) provides ---.' that the expression 'Ruler" in relation to an Indian State means a person by whom the covenant referred to in Article 299(1) was entered into and who for the time being is recognised by the President as the Ruler of the State, G and includes any person who for the time being is recog- nised by the President as the successor of such Ruler.

Now, the covenant entered into by the Rulers of Mad- hya Bharat by which they gave up their sovereignity over ' their respective territories and vested it in the new United H

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

A 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. B ls 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, c and the obligation under this guarantee cannot be en· forced in any municipal court. Moreov.er, if the President refuses to recognise the person by whom the covenant was entered into as the Ruler of the State, h~ would not be entitled to the amount payable as privy purse under Ar· tide 291. Now, the periodical payment of money by the D 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 municipal court is strictly a political pension within the meaning of Section 60(1)(g) of the Code of Civil Proce· E dure. The use of the expression 'purse' instead of the expression ''pension" is due to historical reasons. T71e privy purse satisfies all the essenual 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 Govern- ment cannot be said to a debt or other property over which or the proceeds of which be 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 bas been overruled by Mad· H hav Rao's case (supra).

RAGHUNATII v. U.O.l. [MOHAN, J.) 549 At page 145 of the said decision, it is held : A 'On the coming into force of the Constitution of India, the guarantee for payment of periodical 6Ums 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 B 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 c periodical payment made specially by a Government, com- pany, 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 D 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 E payment of privy purse although placed on a pedestal which defies annibiliation 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. F

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 G 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 H

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

A 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 B Article 363. Therefore, this discussion need not detain us. As to the scope of Article 363, it co~ld 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 c 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 men/ abolish the rights and privileges accorded to the Rulers is no4 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 pwporting 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) G 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 confmed only to the authority of the President to issue the order under Article 366(22) of the Constitu- H tion.

RAGHUNATII v. U.0.1.-(MOHAN, J.) 551 BASIC STRU- This takes us to the power of amendment conferred A 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 : D

(i) Supremacy of the Constitution;

(ii) Republican and Democratic form of Government; E (iii) Secular character of the Constitution;

(iv) Separation of powers between the Legislature, the executive and the judiciary;

F (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. G

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." H

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

A 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 B 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 c structure. (These cannot be catalogued but can only be illustrated).

1. The supremacy of the Constitution.

2. Republican and Democratic form of Government and sovereignity of the country.

3. Secular and federal character of the Constitution.

4. Demarcation of power between the legislature, the executive and the judiciary. E

5. The dignity of the individual secured by the various freedoms and basic rights in Part Ill and the mandate to build a welfare State constrained in Part IV.

6. The unity and the integrity of the nation." F 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 G 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 knoWtedge, they must have known that social, economic and political chan- ges are bound to come with the passage of time and the H Constitution must be capable of being so adjusted as to '

RAGHUNATII v. U.0.1. [MOHAN, J.) 553 be able to respond to those new demands. Our Constitu- A: tion 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 B core of a religion always remains constant but the prac- tices associated with it may change. Likewise, a Constitu- tion 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. U oder c 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 D 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 urichanged." (emphasis sup- E plied).

Further, at page 322, it was stated as under :

"On a careful consideration of the various aspects of F 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 G 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: H

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

A "I will now consider the question which bas been strenuously contended, namely, that there are no essential Al,- 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 B Miich it would be difficult to envisage was the only pur- pose of the fra~ers 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 structure- c less 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 engineer- ing, whichever it is, it must have a structure, or a composi- D tion 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 unascertaioable 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 fundamen- ta! 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 indi- cated in the preamble and translated in the various provisions of the Constitution. The edifice of our Constitu- tion is built upon and stands on several props, remove any of them, the Constitution collapses. These are: (1) Sovereign pemocratic Republic; (2) Justice, social, economical and political; (3) Liberty of thought, expres- sion, belief, faith and worship; (4) Equality of status and '~ of opportunity. Each one· of these is important and col- H lectively they assure a way of life to the people of India

RAGHUNAlH v. U.0.1. [MOHAN, J.) 555 which the Constitution guarantees. To withdraw any of the A 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.' B Palekar, J. in the said judgmont 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 c 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 D 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 E "'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 esseniial 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 H

556 SUPREME rouRT REPORTS (1993) 1 S.C.R. A 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 B particular provisions in the constitution embodying some essential features are not amendable at all. But the dif- ficulty 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 c 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 ilie said judgment at page 720 stated as· under : F "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 e>pinion, should plainly be in the negative." G 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 H way as to destroy or damage the core. I have already said

" RAGHUNATII v. U.0.1. [MOHAN, J.) 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 ange~ 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 Con- stitution 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 c 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 prin- cipal 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 Govern- ment, 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 011 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? 11

Commenting on ihis case and Go/aknath's decision, Subba Rao, Ex. CJ.I. in "The two judgments : Go/aknath and Kesavananda Bharati" (supra) H

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

A 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 B 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 structul'Y! c of the Constitution is 11ot ftY!e from doubt; the answer depends upon the view the Supreme Court takes hereafter of the impact of the opinion of Mathew, Beg, Dwivedi and Chandrachud, JJ. - the fundamental rights are the basic features of the Constitution-on the opinion of the six judges, who held that the core of the fundamental rights is part of the basic structure of the Constitution. One possible view is that together they form a clear majority on the content of the basic structure; another possible view is that their opinion should be read along with their finding that the entire Constitution, except perhaps the bare machine of Government, could be repealed by amend- ment."

If this be the law, the question would be whether Articles 291, 362, F 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 reaUy they are to form basic structure, would not a corresponding right as occurring under Article 32(4) have been provided?

In Indira Nehru Gandlli's case (supra), the following observations are found in para 663 :

RAGHUNATII v. U.0.1. (MOHAN, J.] 559 Preamble "The preamble, generally, uses words of "passion and vis-a-vis power" in order to move the hearts of men and to stir them object of into action. Its own meaning and implication being in doubt, amendment the preamble cannot affect or throw light on the meaning of the enacting words of the Constitution. Therefore, though our Preamble was voted upon as is a part of the Constitu- B lion, it is really "a preiminary 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 C substantive power, is equally true about the prohibitions and limitations. The preamble of our Constitution cannot there- fore be regarded as a source of any prohibitions or limita- tions." D Therefore, regard must be had to the scope of the preamble which states:

"The concept of Rulership, with privy purses and spe- cial privileges un-related to any current functions and social purposes, is incompatible with an egalitarian social order. E 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 amend- ing the relevant provisions of the Constitution, to insert a new article therein so as to terminate expressly the recog- F nition 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 G 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 H

560 1SUPREME COURT REPORTS (1993) 1 S.C.R. A structure.Nor would it mean the same as the basic structure.

To determine whether these provisions constitute basic structure or ,i(-- 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 B changed... Change of The repudiation of the guarantees might result in the Tune&Law. nullification of a just quid pro quo. But, if it is the will pf the people to establish an egalitarian society that will be in harmony with the changing tunes of times. It cannot be c denied that law cannot remain static for all times to come. The extract of Mathew, 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 abridiging 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) 1SCC608 at page 617 succinctly states the law on this aspect as under :

F "Time works changes, brings into existence new condi- tions a11d purposes. Therefore, a principle, to be vital, must be capable of wider application than mischief which gave it birth. This is peculiarly true of Constimtions. They are not ephemeral enactments designed to meet passing occasions. They are, to use the words of Chief Justice Marshal~ G "designed to approach immortality as nearly as human instimtions can approach it". The [umre is their care, and provisions for events of good and bad tendencies of which no prophecy can be made. In the application of a Constim- tion, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a

RAGHUNATII v. U.0.1. (MOHAN, J.] 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 restric- B tive construction." (emphasis supplied)

Robert S. Peck in "The Bill of Rights & the Politics of Intetpretation" states at page 316-317 as under : c "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 D seen as part of a stream of history. That stream is not always unbroken and has, frequently, taken radical turns That it is path has been winding is not surprising, since history is not a steady and predictable progression follow- ing drlier events. Still, constitutional rights must be viewed as travelling down a single historic stream. Today's E 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 re- quire translation into practical rules that apply to their most modern manifestations. In thi~ role, courts perform F a mediating function, harmonizing different strands into a coherent order. But the courts do not eliercisc an exclusive authority in giving coherence to constitutional law. Politi- cal leaders and political institutions have played this role as well, advancing both the law and the mechanisms avail- able to promote constitutional liberty. "Great constitution- G al 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 H

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

A degree as the Courts. (Missouri, Kansas & Texas Rly. Co. v. May, 194 U.S. 267, 270 (1904)).

The C.ourts arc insulated from the political winds that buffer, moiivate and sometimes disable a legislature. This independence from the larger political world is critical to · B the successf~I 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 c! variety of interest groups that influence the process by their actions and by the appeal of their argumenis.•

In the words of the famous poet James Russel Lowell :

·D New occasions teach new duties: Time makes ancient good uncouth: They must upward still, and onward, who would keep abreast of Truth."

E No doubt, unity and integrity of India would constitute the basic structure as laid down in Kesavananda's case (supra) but it is too far fetched a claim to state that the guarantees and assurances in these Articles have gone into the process of unification and integration of the country. One cannot lose sight of the fact that it was the will of the people and the F 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 unaccep- table.

G 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 H in Bhimsinghji's case (supra) can now be extracted :

RAGHUNA1H v. U.0.1. (MOHAN, J.) 563 Per Tulzapurkar, J. A Violation of 'Further, the restriction under Section 27(1) in the Alt. 14 absence of any guidelines governing the exercise of the power on the competent authority in the matter of granting or refusing to grant the perniission is highly arbitrary, productive of discriminatory results and, therefore, violates the equality clause of Article 14. Which of the tlu;ee objec- tives 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 proper- ty. 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 vins and unconstitutional.'

Per Chandrachud, CJ. and Bhagwati, J. (Krishna Iyer, J., concurring) E "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 onlyof such building, which is within the ceiling area. Such property will, therefore, be transferable "without the constrains men- F tioned in sub-section (1) of the Act;" (paras 5,8, &10)

Per Krishna Iyer, J. (concurring)

"I agree with the learned Chief Justice both regarding the constitutionality of the legislation and regarding par- G tial invalidation of Section 27(1)."

Per Sen, J.

"Sub-Sections (1), (2) and (3) of Section 23 and the opening words "subject to the provisions of sub-sections H

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

A (1), (2) and (3) in Section 23(4) are ultra vires the Par- liament 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 Ac4 in relation to vacant land or building thereon, B within the ceiling limits."

Krishna Iyer, J. stated in the said judgment at page 186 as under:

c 'The question of basic structure being breached cannot arise when we examine the vires of an ordinary legiolation 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 otructure. 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 ine- qualities. 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 F shocking, unconscicnable or unscrupulous travesty of the quintessence ol equal j1L•tice. 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 G parliamentary function. Nor can the constitutional fascina- tion 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 aboli- tion of basic poverty by the 'basic structure' missile. Which H is more basic? Eradication of die-hard, deadly and per-

RAGHUNATII v. U.0.1. [MOHAN, J.] 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 Comtitution 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-bard, 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 c IV is a basic goal of the nation and now that the Court upholds the urban ceiling law, a social audit of the Executive's implementation a year or two later will bring to light the gaping gap between verbal velour of the statute book and the executive slumber of law-in-action. The D 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. All the privy purses holders are treated alike by the withdrawal of all those privileges. E

The next aspect of the matter is can the Court go into the morality in witlldrawing these assurances and guarantees.

The following extract from 'Law and Morality' by Louis Blom-Cooper F 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 G principles? No one doubts the answer is affirmative; con- versely law has ffifluenced moral principle. The Suicide

r 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 H

566 SUPR~Mil COURT REPORTS (1993) 1 S.C.R. A by the judiciary (originally) for reasons having t? 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 B 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 c in the sterile argumeni 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 H_ouse of Lords' decision in Bunnah 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 enfor- ceability (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. Kent Greenawalt in 'Conflicts of Law and Morality" 1987 Edition states at page as follows :

Impugned "Like ordinary legislation, constitutional provmons amendment protecting rights reflect the moral judgments of those who whether adopted theill, in this case complex judgments that certain H mOl'tll. activities sbliuld be put beyond the range of control by the

• RAGHUNAIB v. U.0.1. [MOHAN, J.J 567 political branches of the government. In constitutions, as in statutes, language may embody a compromise of com- peting moral claims, though nothing in out federal Con- stitution resembles the relatively precise accommodation of the criminal law rules governing use of force in self- defence. The fact that the Constitution itself represents moral evaluations does not, of course, establish that moral evaluation is also the task of those who must decide if statutes and their applications fall a foul of constitutional restraints.

Widespread agreement exists on the appropriateness c 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 sqaurely within the area of constitutional protection. For these actions,. a modem court will rarely D 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 evalua- tion; the implications of the textual language, the Framers' E 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 : F

"According to the view of democracy that underlies originalism, it is illegitimate for the judiciary to go beyond the enforcement of p0licy choices to the· making of policy choices-at least, it is illegitimate Uitless the. judiciary is G authorised to do so by the legislative and executive branches.

r And it is illegitimate in extremis for the undemocratic judiciary to oppose itself, in constitutional cases, to the democratic branches and agencies of government on the basis of beliefs 1ne1(Cr conktitutionalised by the ratifiers." H

568 SUPREMj3 COURT REPORTS [1993) 1 S.C.R. A Therefore, this Court cannot concern itself with the moral aspect of the impugned amendment. The impugned amendment is the will of the A( - people expressed through Parliament.

In view of the foregoing discussion, these petitions .ire liable to be dismissed. Acrordingly, these petitions stand dismissed. B V.P.R. Petitions dismissed.