tition Civil No 47 of 1992
Under Article 32 of the Constitution of India
789 PL Singal and NA
Siddiqui for the Petitioner
DN Dwivedi Additional Solicitor General and Mrs Niranjana Singh for the Respondent
The Judgment of the Court was delivered by SHARMA CJ
By the present application under Article 32 of the Constantine of India the petitioner has challenged the constitutional validity of the Representation of the People Amendment Ordinance 1992 Ordinance No1 of 1992 and the Representation of the people Second Amendment Ordinance 1992 Ordinance No2 of 1992 on the grounds of violation of Articles 14 19 and 21
By the first Ordinance section 52 of the Representation of the People Act 1951 the Act providing for countermanding elections in certain circumstances has been amended
By the second Ordinance the period of 20 days in section 30 of the Act has been reduced to 14 days
Later when the Parliament met the amendments were incorporated by an amending Act
2The provisions of section 52 as they stood before the amendment provided for countermanding the election in either of 2 contingencies i if a candidate whose nomination was found valid on scrutiny under section 36 or who has not withdrawn his candidature under section 37 died and a report of his death was received before the publication of the fist of contesting candidates under section 38 ii if a contesting candidate died and a report of his death was received before the commencement of the poll
On countermanding the Returning Officer will have to report the fact to the Election Commission and all proceedings with reference to the election will have to be commenced de novo in all respects as if for a new election
By the first Ordinance the area attracting the provisions of countermanding has been narrowed down by confining the provisions only to such cases where a candidate of a retired political party dies
3Section 30 deals with appointment of dates for nomination scrutiny and the holding of poll and in clause d it is provided that the date of poll shall not be earlier than the twentieth day after the last date for the withdrawal of candidatures
With a view to expedite the whole process the words twentieth day  have been substituted by the words fourteenth day in the said clause by the impugned Ordinace
790 4
Learned counsel for the petitioner has strenuously contended that the distinction made by the impugned amendment between a candidate set up by a recognised political party and any other candidate is artificial inconsistent with the spirit of the election law and discriminatory
The Constitution does not confer on a candidate set up by a registered political party any special right and treats all candidates similarly
It does not recognize any categorisation
It is therefore argued that the difference which is being introduced by the impugned amendment is contrary to the scheme of the Constitution and violative of the equality clause in Article 14
According to the learned counsel this will also infringe the guarantee under Article 191a in respect of freedom of speech and expression
5Elaborating his argument the learned counsel contended that the right to choose its representative belongs to the voters of a particular constituency and this should not be whittled down by amendments which have a tendency to undermine this element
Lack of wisdom in giving importance to recognized political parties was emphasised by saying that such parties almost always impose their choice of candidates in their own interest and at the cost of the welfare of the constituencies
By introducing this imbalance in the Act it is stated the republican character of the Constitution is jeopardised
The sum and substance of the argument on behalf of the petitioner is that no distinction can be made between one candidate and another purely depending on recognition as a political party
6So far the second Ordinance is concerned the objection is that the period of 14 days substituted by the amendment is too short and the reduction from the period of 20 days is arbitrary and prejudicial to the larger interest for which elections are held
7In reply Mr Altaf Ahmad Additional Solicitor General appearing on behalf of the Union of India has strongly relied upon the statements made in the counter affidavit filed on behalf of the respondent stating that on account of increase in terrorism and physical violence in several parts of the country combined with the phenomenal increase in the number of independent candidates the danger of disruption of the election process has been fast growing and the problem was therefore taken up for serious consideration
The issue was examined by the Electoral Reforms Committee set up in 1990 under the Chairmanship of the then Minister of law and 791 Justice late Dinesh Goswami
After studying the problem deeply and considering various points of view presented in this regard the
Committee made its recommendation and accordingly the impugned amendment was made
Explaining the urgency of introducing the amendment by an Ordinance when Parliament was not in session the counter affidavit states that it had then been decided to hold the General Elections to the House of People from the State of Punjab as also the election to the State Legislature of that State and having regard to the law and order situation prevailing in the State it was considered essential to curb the danger of disruption of the election process by amending section 52 immediately
With the same object in view the period of 20 days mentioned in section 30 was substituted by 14 days
8Before proceeding to examine the merits of the argument addressed on behalf of the petitioner it will be useful to note that the right to vote or to stand as a candidate for election is neither a fundamental nor a civil right
In England also it has never been recognised as a common law right
In this connection we may usefully refer to the following observations inJyoti Basu  Others vs Debi Ghosal  Others AIR1982 SC983 and 986 which reads as under  The nature of the right to elect the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in NP Ponnuswani vs Retuming Officer Namakkal Constituency    and Jagan Nath vs Jaswant Singh  We proceed to state what we have gleaned from what has been said so much as necessary for this case
A right to elect fundamental though it is to democracy is anomalously enough neither a fundamental right nor a Common Law Right
It is pure and simple a statutory right
So is the right to be elected
So is the right to dispute an election
Outside of statute there is no right to elect no right to be elected and no right to dispute an election
Statutory creations they are and therefore subject to statutory limitation
 792 The objection raised by the petitioner therefore must be examined in this background
9The challenge of the petitioner is directed against the differential treatment which the election law in India gives to candidates set up by political parties
The main thrust of the argument of the learned counsel is that the party system and the recognition of political parties is itself detrimental to the cause of real democracy
In any event no additional advantage ought to have been allowed to candidates set up by political parties
This stand runs counter to the constitutional scheme adopted by the nation
It has firmly been established that the Cabinet system of Government has been envisaged by our Constitution and that the same is on the British pattern
See Shamsher Singh vs State of Punjab  at 827
In England where democracy has prevailed for longer than in any other country in recent times the Cabinet system of Government has been found to be most effective
In the other democratic countries also the party system has been adopted with success
It has been realised that for a strong vibrant democratic Government it is necessary to have a parliamentary majority as well as a parliamentary minority so that the different points of view on controversial issues are brought out and debated on the floor of the Parliament
This can be best achieved by the party system so that the problems of the nation may be discussed considered and resolved in a constructive spirit
To abolish or ignore the party system would be to permit a chorus of discordant notes to replace an organised discussion
In his book Cabinet Government 2nd Edition page 16 Sir Ivory Jennings has very rightly said
Party warfare is thus essential to the working of the democratic system
It is therefore idle to suggest that for establishing a true democratic society the party system should be ignored
Our Constitution has clearly recognized the importance of this system which was further emphasized by the addition of the 10th Schedule to it
The Election Symbols Reservation and Allotment Order is also a step in that very direction
There is also no merit whatsoever in the contention that candidates set up by political parties should not receive any special treatment
The fact that candidates set up by political parties constitute a class separate from the other candidates has been recognized by this Court in numerous cases
In paragraph 14 of the judgment in the case of Dr PN Thampy Terah vs Union of India 1985 Suppl
SCC 189 the Constitution 793 Bench observed thus  It is the political parties which sponsor candidates that are in a position to incur large election expenses which often run into astronomical figures
We do not consider that preferring political parties for exclusion from the sweep of monetary limits on election expenses is so unreasonable or arbitrary as to justify the preference being struck down upon that gournd In DML Agarwal vs Rajiv Gandhi  a Division Bench of this Court took note of and emphasized the vital role of political parties in a parliamentary form of democracy and anxiety was expressed about the growing number of independent candidates
For the reasons indicated above we do not find any substance in the argument of the learned counsel for the petitioner challenging the constitutional validity of the impugned amendment of section 52
The argument against the reduction of the period of 20 days to 14 days in section 30 is equally without any merit
The learned counsel could not suggest any good reason for holding that the period of 14 days would be inadequate or inappropriate especially in the changed circumstances which are prevailing in the country
Consequently this writ petition is dismissed with costs assessed at Rs 2500 payable to the respondent Union of India
NVK Petition dismissed


Summary:
The petitioner was a Co Ruler of an Ex Indian State of Kurundwad
His Co Ruler on behalf of both executed an instrument of accession under Section 5 of the Government of India Act 1935 and their State became a part of the Dominion of India
A Merger Agreement was executed on the 19th February 1948 and the administration of the State of the petitioner was also handed over to the Dominion Government on the 8th March 1948
The case of the petitioner was that under the Merger Agreement he 480 481 was entitled to receive annually from the revenues of the State his privy purse as specified in the Merger Agreement
Certain groups of States entered Into covenants for the establishment of United States comprising the territories of the covenanting States and Talukas with a common executive legislature and judiciary
On 13th October 1949 the Constituent Assembly of India adopted inter alia two Articles namely Article 291 relating to payment of privy purse and Article 362 relating to personal rights and privileges of the Rulers
The Rulers and Rajpramukhs of the States agreed to adopt the Constitution drafted by the Constituent Assembly of India
In pursuance of Article 36622 of the Constitution of India the petitioner was recognized as the Ruler of the Kurundwad State with effect from 26th January 1950 and had been in the enjoyment of the privy purse privileges titles and dignities issued by Merger Agreement and by the Constitution of India
The Parliament enacted the Constitution Twenty Sixth Amend ment Act of 1971 repealing Articles 291 and 362 of the Constitution a new Article 363 A was inserted and new clause 22 to Article 366 was substituted
It resulted in depriving the Rulers of their recognition already accorded to them and declaring the abolition of the privy purse and extinguishing their rights and obligation in respect of privy purse
The petitioner filed the writ petition challenging the impugned Amendment Act as unconstitutional and violative and the fundamental rights of the petitioner guaranteed under Articles 14 191f 21 and 3112 of the Constitution
In the Writ Petition No 35172 IA Nos 1 to 3 of 1992 were filed by the daughters of Late Maharaja of Mysore
WRIT PETITION NO
798 OF 1992 The petitioner was the successor to the Ruler of Mysore also challenged the Constitution 26th Amendment Act of 1971 on the same grounds as in Writ Petition No 35172
482 The petitioner in WP No 35172 submitted that Articles 291 362 and 36622 of the Constitution were integral part of the constitutional scheme and formed the important basic structure since the underlying purpose of these Articles was to facilitate stabilization of the new order and ensure organic unity of India that the deletion of the Articles damaged and demolished the very basic structure of the Constitution that the covenants entered into were in the nature of contracts which was guaranteed constitutionally and affirmed by making the privy purse an expenditure charged under the Consolidated Fund of India that the deletion of the Articles amounted to a gross breach of the principle of political justice enshrined in the preamble by depriving or taking away from the princes the privy purses which were given to them as consideration for surrendering all their sovereign rights and contributing to the unity and integrity of the country that the Rulers acceded to the Dominion of India and executed Instruments of Accession and Covenants in consideration of the pledges and promises enshrined in Articles 291 and 362 that the impugned Amendment Act was beyond and outside the scope and ambit of the constitutional power of the Parliament to amend the Constitution as provided under Article 368 of the Constitution that the Constitution Twenty Sixth Amendment Act was unconstitutional null void and violative of Articles 14 191 g 21 31 1 and 2 of the Constitution and that Articles 291 and 362 when incorporated were intended to grant recognition to the solemn promises on the strength of which the former Rulers agreed to merge with the Indian Dominion and the guarantee of privy purses and certain privileges was as a just quid pro quo for surrendering their sovereignty and dissolving their States
The petitioner in IA No 3 submitted that the fact that the expression guarantees occurring both in Article 32 and Article 291 besides in Article 362  guarantee  clearly demonstrated the mind of the Constitution makers that they intended the said provisions of Articles 291 and 362 to be the basic and essential structure of the Constitution
The petitioner in 1 A No 1 contended that the erstwhile rulers of the princely States formed a class apart and there was real and substantial distinction between them and the citizenry of India that the impugned amendment which violated the basic structure of the Constitution was unconstitutional that the Amendment Act was violative of the essential features contained in Articles 14 and 191f
483 The petitioner in WP No 79892 added that the two Articles were not at all amendable on the principle of prohibition against impairment of the contractual obligations that the impugned Amendment Act was an ugly epitome of immorality perpetrated by the India Parliament that too In the exercise of its constituent powers and the said Amendment Act constituted an unholy assault on the spirit which was impermeable and that the principle of justice fairness and reasonableness were beyond the amending powers of the Parliament that the equality clause as interpreted by this Court in various decisions was the most important and indispensable feature of the Constitution and destruction thereof would amount to changing the basic structure of the Constitution and that the authority of the Parliament to amend the Constitution under Article 368 could be exercised only if the Amendment in the Constitution was justifiable and necessitated because of the socioeconomic reasons broadly referred to in the directive principles of the State Policy and that any Amendment unrelated to any genuine compulsion amounts to an abuse of the power and was therefore a fraud on the exercise of power itself Respondent Union of India contended that the Instruments of Accession were only the basic documents but not the individual agreements with the Rulers and therefore to attribute the agreements entered into by Rulers as a sacrifice by the Rulers was unfounded that the nature of the covenants was not that of a contract because a contract was enforceable at law while these covenants were made non justiciable by the Constitution vide Article 363 that the covenants were political in nature and that no legal ingredients as the basis could be read into these agreements and that the guarantees and assurances embodied in Articles 291 and 362 were guarantees for the payment of privy purses that such a guarantee could always be revoked in public interest pursuant to fulfilling a policy objective or the directive principles of the Constitution that being so the theory of sanctity of contract or unamendability of Articles 291 or 362 did not have any foundation and that the theory of political justice was also not tenable because political justice meant the principle of political equality such an adult suffrage democratic form of Government etc
Dismissing the Writ Petitions and the IAs this court HELD  By Full Court  The Constitution Twenty Sixth Amendment Act of 1971 is valid in its entirety
529G 484 Per section Ratnavel Pandian J on his behalf and on behalf of the Chief justice of India BP Jeevan Reddy and SP Baucha JJ 101
The only question is whether there is any change in the basic structure of the Constitution by deletion of Articles 291 362 and by insertion of Article 363A and amendment of clause 22 of Article 366
The question is answered in the negative observing that the basic structure or the essential feature of the Constitution is are in no way changed or altered by the Constitution Twenty Sixth Amendment Act of 1971
529D 102
In our democratic system the Constitution is the supreme law of the land and all organs of the government executive legislative and judiciary derive their powers and authority from the Constitution
A distinctive feature of our Constitution is its amendability
518G 103
The power of amendment is plenary and it includes within itself the power to add after or repeal the various Articles of the Constitution including those relating to fundamental rights but the power to amend does not include the power to alter the basic structure or framework of the Constitution so as to change its identity
In fact there are inherent or implied limitations on the power of amendment under Article 368
515G 104
There are specific provisions for amending the Constitution
The amendments had to be made only under and by the authority of the Constitution strictly following the modes prescribed of course subject to the limitations either inherent or implied
The said power cannot be limited by any vague doctrine of repugnancy
There are many outstanding interpretative decisions delineating the limitations so that the Constitutional fabric may not be impaired or damaged
The amendment which is a change or alteration is only for the purpose of making the Constitution more perfect effective and meaningful
But at the same time one should keep guard over the process of amending any provision of the Constitution so that it does not result in abrogation or destruction of its basic structure or loss of its original identity and character and render the Constitution unworkable
519B D 105
The Courts are entrusted with important Constitutional responsibilities of upholding the supremacy of the Constitution
An amendment of a Constitution becomes ultra vires if the same contravenes or transgresses the limitations put on the amending power because there 485 is no touchstone outside the Constitution by which the validity of the exercise of the said powers conferred by it can be tested
518H 519A 106
The Court is not concerned with the wisdom behind or propriety of the Constitutional amendment because these are the matters for those to consider who are vested with the authority to make the Constitutional amendment
All that the Court is concerned with are 1 whether the procedure prescribed by Article 368 is strictly complied with and 2 whether the amendment has destroyed or damaged the basic structure or the essential features of the Constitution
519D E 107
If an amendment transgresses its limits and impairs or alters the basic structure or essential features of the Constitution then the Court has power to undo that amendment
519F 108
No principle of justice either economic political or social is violated by the Twenty sixth Amendment
Political justice relates to the principle of rights of the people ie right to universal suffrage right to democratic form of Government and right to participation in political affairs
Economic justice is enshrined in Article 39 of the Constitution
None of these rights are abridged or modified by this Amendment
523C 109
There is no question of change of identity on account of the Twenty sixth Amendment
The removal of Articles 291 and 362 has not made any change in the personality of the Constitution either in its scheme not in its basic features nor in its basic form nor in its character
The question of identity will arise only when there is a change in the form character and content of the Constitution
1527G 110
A moral obligation cannot be converted into a legal obligation
Courts are seldom concerned with the morality which is the concern of the law makers
527D E 111
In a country like ours with so many disruptive forces of regionalism communalism and linguism it is necessary to emphasise and re emphasise that the unity and integrity of India can be preserved only by a spirit of brotherhood
India has one common citizenship and every citizen should feel that he is Indian first irrespective of other basis
In this view any measure at bringing about equality should be welcome
There is no legitimacy in the argument in favour of continuance of princely 486 privileges
Abolition of privy purses is not violative of Article 14
528F 112
The Court cannot make surmises on ifs  and buts  and arrive to any conclusion that Articles 291 and 362 should have kept in tact as special provisions made for minorities in the Constitution
It is but a step in the historical evolution to achieve faternity and unity of the nation transcending all the regional linguistic religious and other diversities which are the bed rock on which the constitutional fabric has been raised
The distinction between the erstwhile Rulers and the citizenary of India has to be put an end to so as to have a common brotherhood
529E F Nawab Usmanali Khan vs Sagamial   HH Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur  Ors
vs Union of India   Minerva Mills vs Union of India   His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala and Another 1973 4 SCC 225 Shankari Prasad vs Union of India   Sajjan Singh vs State of Rajasthan  at 966 Golak Nath vs State of Punjab   Rustom Cawasjee Cooper vs Union of India   Waman Rao and Others vs Union of India and Others  at 588 89 Maharao Sahib Shri Bhim Singhji vs Union of India and Others at 212 Madhav Rao vs Union  at 74 and 83 Indira Nehru Gandhi vs Raj Narain  Sanjeev Coke Manufacturing Company vs Bharat Cooking Coal Ltd   Varinder Singh  Ors
vs State of UP  at 435 Maneka Gandhi vs Union of India 1978 2 SCR 621 RD Shetty vs International Airport Authority of India   Kasturi Lal Lakshmi Reddy vs State of Uttar Pradesh   EP Royappa vs State of Tamil Nadu   Krishna Kumar vs Union of India   Mfd
Usman  Ors
vs State of Andhara Pradesh and Ors
 1971 Suppl
SCR 549 Ramesh Prasad Singh vs State of Bihar  Ors   rererred to
Report of the Joint Select Committee on Indian Constitutional Reforms 1933 34 Report of he Expert Committee headed by Nalini Ranjan Sarkar published in December 1947 Report of the Indian States  Finances Enquiry Committee chaired by Sir VT Krishanamachary appointed on 22nd October 1948
Report of the Rau Committee chaired by Sir BN Rau appointed in November 1948 Dias Jurisprudence Fifth Edition at pages 355 and 356 Bentham  Theory of Legislation Chapter XII at page 60 referred to
487 Per section Mohan J Concurring 101
One of the tests of identifying the basic feature is whether the identity of the Constitution has been changed
537A 102
The personality of the Constitution must remain unchanged
It is not necessary that the constitutional amendment which is violative of a basic or essential feature should have an instant or immediate effect on the basic structure
It is enough if it damages the essential feature
537B 103
The test to be applied therefore is whether the amendment contravenes or runs counter to an imperative role or postulate which is an integral part of the Constitution
537B 104
Turning to basic structure the proper test for determining basic feature is to find out what are not basic features
Rights arising out of covenants which were non justiciable cannot be regarded as basic feature
Where therefore Article 363 makes these features non justiciable the question of basic feature does not arise
539H 540A 105
The guarantees in Articles 291 and 362 are guarantees for the payment of privy purses
Such a guarantee can always be revoked in public interest more so for fulfilling a policy objective or the directive principles of the Constitution
This is precisely what the preamble to the impugned amendment says
That being so the theory of sanctity of contract or the unamendability of Article 291 or 362 does not have any foundation
The theory of political justice is also not tenable since political justice means the principle of political equality such as adult suffrage democratic form of Government etc
539D E 106
If the 26th amendment aims to establish an egalitarian society which is in consonance with the glorious preamble how could this provision be called a basic structure No doubt in Madhav Rao s case it was held that these provisions Articles 291 362 366 22 are an integral part of the Constitution
Apart from the fact that all these reasons were addressed against the President under Article 36622 this Statement cannot tantamount to basic structure
Nor would it mean the same as the basic structure
1559G H 107
To determine whether these provisions constitute basic struc 488 ture or not they cannot be viewed in the historic background
By repeal of these provisions the personality of the Constitution has not changed
India could still retain its identity and it can hardly be said that the personality has changed
560A 108The repudiation of the guarantees might result in the nullification of a just quid pro quo
But if it is the will of the people to establish an egalitarian society that will be in harmony with the changing of times
It cannot be denied that law cannot remain static for all times to come
560C 109 Unity and integrity of India would constitute the basic structure as laid down in Kesavananda s case but it is too far fetched claim to state that the guarantees and assurances in these Articles have gone into the process of unification and integration of the country
One cannot lose sight of the fact that it was the will of the people and the urge to breathe free air of independent India as equal citizens that brought about the merger of these princely States
Therefore the contention that the Articles 291 and 362 facilitated the organic unity of India is unacceptable
562E F 110 In this case the amendment does not either treat unequals as equals or in any manner violates Article 14
All the privy purses holders are treated alike by the withdrawal of all those privileges
565E 111
This Court cannot concerns itself with the moral aspect of the impugned amendment
The impugned amendment is the will of the people expressed through Parliament
568A Virendra Singh and Others vs State of Uttar Pradesh  at 454 HH Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur  Ors
vs Union of India   His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala 1973 Supp
SCR 1 Waman
Rao and Others vs Union of India and others  at 588 89 Maltarao Sahib Shri Bhim Singh Ji vs Union of India  Ors at 212 Indira Nehru Gandhi vs Raj Narain 1975 Supp SCC 1 at 252 Ajay Hasia vs Khalid Mujib Sehravardi   Minerva Mills Ltd vs Union of India  Ors   119861 3 SCR 718 ON Mohindroo vs District Judge Delhi  Mohanlal Jain vs His Holiness Maharaja Shri Swai Mari Singh Ji 1962 1 SCR 702 Ramesh Prasad Singh vs State of Bihar Another vs Vithal Rao  Ors   Usman Ali Khan vs Sagar 489 Mal   Golak Nath vs State of Punjab   Weems vs United States 54 Law Edition 801 Francis Coralie Mullin vs Administrator Union Territory of Delhi  Ors  at 617 referred to
The Framing of India s Constitution   By B Shiva Rao at page 520 Robert section Peck The Bill of Rights  the Politics of Interpretation at page 316 317 Law and Morality  By Louis Blom Cooper Gavin Drewry at page 2 Kent Greenawalt  Conflicts of Law and Morality 1987 Edition at page 338 referred to