Case: Shri Raghunathrao Ganpatrao Vs. Union of India

2. The petitioner, Shri Raghunathrao Raja was theof Indian State of Kurundwad Jr. which was prior to August 15, 1947 a sovereign State in treaty relationship with, and under the suzerainty of the British Crown.3. On the commencement of the Indian Independence Act, 1947, British paramountcy lapsed and the Indian States became completely sovereign and independent. They were free to accede to either of the two Dominions of India or Pakistan or to remain independent. The petitioners coRuler, on behalf of both, executed an instrument of accession under Section 5 of the Government of India Act, 1935, as adopted under the Indian Independence Act, 1947.This instrument was accepted by the Governor General of India and the State thus became a part of the Dominion of India. Likewise, Rulers of most of the other Indian States also executed similar instruments which were accepted by the Governor General. By the said instrument, the petitioner accepted the matters specified in the schedule thereto as matters with respect to which the Dominion Legislature may make laws for the State and declared his intent that the Governor General of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, subject to the terms of the instrument, exercise in relation to the Kurundwad State such functions as may be vested in them by the Government of India Act, 1935 as in force in the Dominion of India on August 15, 1947. According to the petitioner, clause 7 of the Instrument provided that nothing therein shall be deemed to commit the Ruler in anyway to acceptance of any future Constitution of India or to fetter his discretion to enter into agreements wit h the Government of India under any such future Constitution. Subsequently, a number of Rulers executed Agreements of Merger and transferred the administration of their States to the Dominion Government. The Merger Agreement was in t he form given in the White Paper on Indian States and it was executed on February 19, 1948. Then the administration of the State of the petitioner was handed over on March 8,groups of States entered into covenants for the establishment of United States comprising the territories of the covenanting States and Talukas with a common executive, legislature and judiciary. The covenants inter alia provided for the administration of United States by a Rajpramukh aided and advised by a Council of Ministers.They also envisaged the establishment of a Constituent Assembly charged with the duty to frame Constitution for the Unit ed States within the framework of covenants and of the Constitution of India. Each of the covenants was concurred in by the Government of India which guaranteed all its provisions including provisions relating to the privy purse, personal privileges etc. etc. However, it was later desired that the Constitution of the United States should also be framed by the Constituent Assembly of India and form part of the Constitution of India. It was decided in consultation with the Government of the United States that the Constitution of India as framed by the Constituent Assembly of India should itself contain all the necessary provisions governing the constitutional structure of the United States as well as the provisions for the guarantee contained in the covenants and the Merger Agreements. In pursuance of this decision the necessary provisions including Part VII providing for the Government, legislature, judiciary, etc.of the United States as well as certain separate articles governing other matters, for example, the privy purse and privileges of Rulers bringing them within the framework of the covenants were included in the Constitution of India.Accordingly on October 13, 1949 the Constituent Assembly of India adopted inter alia two articlesnamely, Article 291 relating to payment of privy purse and Article 362 relating to personal rights and privileges of the Rulers. Amendments relating to the United States and other States which had not merged were al so adopted and these States were called Part B States. The Rulers and Rajpramukhs of the States ag reed to adopt the Constitution as drafted by the Constituent Assembly of India and issued proclamations directing that the Constitution to be adopted by the Constituent Assembly of India shall be the Constitution for the United States.Supplementary covenants were also executed by the covenanting States which covenants were concurred in and guaranteed by the Government of India. Thereafter, the Constituent Assembly passed and adopted the Constitution. According to the petitioner, it was only on the basis of the Constituent Assemblys acceptance of the provisions of Articles 291, 362 and clause (22) of Article 366 that the Rulers adopted the Constitution of India in relation to their States. After the commencement of the Constitution of India and in pursuance of Article 366(22) thereof the petitioner was recognised as the Ruler of the Kurundwad St ate with effect from January 26, 1950 and had been in the enjoyment of the privy purse, privileges, titles and dignities issued by Merger Agreement and by the Constitution of India. While it was so, the Parliament enacted new Actsnamely, the ConstitutionAmendment) Act, 1971, the ConstitutionAmendment) Act, 1971 and the ConstitutionAmendment) Act, 1971, the last ofwhich received the assent of the President on December 28, 1971. By this Act, Articles 291 and 362 of the Constitution were repealed and a new Articlewas inserted, resulting in depriving the Rulers of the recognition already accorded to them and declaring the abolition of the privy purse and extinguishing their rights and obligations in respect of privy purses and new clause (22) to Article 366 was substituted. Therefore, the petitioner is now challenging the impugned Amendment Act as unconstitutional and violative of the fundamental rights of the petitioner guaranteed under Articles 14, 19(1)(f), 21 and 31 (1) and (2) of the Constitution.6. In this writ petition, I.A. Nos. 1 to 3 of 1992 have been filed by Smt Kamakshidevi Yavaru, Smt Vishalakshideviyaru and Smt Indrakshi Devi, daughters of late Maharaja of Mysore.7. The petitioner in Writ Petition No. 798 of 1992 is the successor to the late His Highness Shri Jaya Chamaraja Wadiyar, Ruler of Mysore who has ruled the State of Mysore from September 8, 1940 onwards until January 23, 1950 when the Treaty/Agreement was made between the Government of India and His Highness the Maharaja of Mysore. This petitioner also challenges the ConstitutionAmendment) Act, 1971 on the same grounds as in Writ Petition No. 351 of 1972.Reverting to the cases on hand, Shri Raghunathrao Ganpatrao, the petitioner in Writ Petition No. 351 of 1972 executed a Merger Agreement as per the form of merger on February 19, 1948 and handed over the administration of the State on March 8, 1948. The petitioner was entitled to receive annually from the revenues of the States his privy purse of Rs 49, 720 as specified in the Merger Agreement (as amended by an Order of Government of India in 1956) free of taxes besides his personal privileges, rights and the Dominion Government guaranteed the succession according to law and custom of the Gaddi of the State and the Rajas personal rights, privileges and dignities.35. Shri Jaya Chamaraja Wadiyar, father of the petitioner (Shri Srikanta Datta Narasimharaja Wadiyar) in Writ Petition No. 798 of 1992 executed an Instrument of Accession and entered into a Merger Agreement/Treaty on January 23, 1950. Under the Merger Agreement, the Maharaja of Mysore was entitled to receive annually for his privy purse the sum of Rs 26, 00, 000 (Rupeeslakhs) free of all taxes w.e.f. April 1, 1950. Article (1) of the said Agreement contained a proviso that the sum of Rs 26, 00, 000 was payable only to the then Maharaja of Mysore for his lifetime and not to his successor for whom a provision would be made subsequently by the Government of India.Besides, the then Maharaja was entitled to the full ownership, use and enjoyment of all his private properties (as distinct from State properties) belonging to him on the date of the Agreement as specified under clause (1) of Article (2) of the Agreement.While, it was so, in 1950 when the Constitution was enforced, it conferred upon the Rulers the aforesaid guarantees and assurances to privy purse, privileges etc. under Articles 291, 362 and 366(22) of the Constitution. Accordingly, Rulers continued to enjoy the said benefits up to 1970.38. On May 14, 1970, the ConstitutionAmendment) Bill, 1970 for abolition of the above said privy purse, privileges etc. conferred under Articles 291, 362 and 366(22) was introduced in the Lok Sabha by the then Finance Minister, Shri Y.B. Chavan. The Bill contained three clauses and a short Statement of Objects and Reasons. The statement reads thus:"The concept ofwith Privy Purses and Special Privileges unrelated to any current functions and social purposes, is incompatible with an egalitarian social order. Government have, therefore, decided to terminate the Privy Purses and Privileges of Rulers of former Indian States. Hence this Bill." *39. On September 2 , 1970 the Bill was voted upon in the Lok Sabha. But on September 5, 1970 the Rajya Sabha rejected the same since the Bill failed in the Rajya Sabha to reach the requisite majority of not less thanmembers present as required by Article 368 and voting. Close on the heels of the said rejection, the President of India purporting to exercise his powers under clause (22) of Article 366 of the Constitution, signed an Order withdrawing recognition of all the Rulers in the country en masse. A communication to this effect was sent to all the Rulers in India who had been previously recognised as Rulers.40. This Presidential Orderderecognising the Rulers wasquestioned in Madhav Rao Scindia v. Union ofby filing writ petitions under Article 32 of the Constitution challenging it as unconstitutional, ultra vires and void. AnBench of this Court by its judgment dated December 15, 1970 struck down the Presidential Order being illegal, ultra vires and inoperative on the ground that it had been made in violation of the powers of the President of India under Article 366(22) of the Constitution and declared that the writ petitioners would be entitled to all theirrights and privileges including right to privy purses as if the impugned orders therein had not been passed. Here, it may be noted that Mitter and Ray, JJ. gave their dissenting judgment.41. Thereupon, the payment of privy purses to the Rulers was restored. Subsequently, Parliament enacted a new Act entitled the ConstitutionAmendment) Act, 1971 on receiving the ratification by the legislatures of II States. It received the assent of the President on November 5, 1971. By this amendment Act,clause (4) reading "Nothing in this article shall apply to any amendment of this Constitution made under Article 368" was inserted in Article 13 and Article 368 was renumbered as clause (2). The marginal heading to that article was substituted namely "Power of Parliament to amend the Constitution and procedure therefore" in the place of "Procedure for amendment of the Constitution". Before renumbered clause (2), clause (1) was in serrated. In the renumbered clause (2) for the words "it shall be presented to the President for his assent upon such assent being given to the Bill", the words "it shall be presented to the President who shall give his assent to the Bill and the reupon" was substituted. After the renumbered clause (2), clause (3) was inserted, namely: "Nothing in Article 13 shall apply to any amendment made under this article".Thereupon, the payment of privy purses to the Rulers was restored. Subsequently, Parliament enacted a new Act entitled the ConstitutionAmendment) Act, 1971 on receiving the ratification by the legislatures of II States. It received the assent of the President on November 5, 1971. By this amendment Act,clause (4) reading "Nothing in this article shall apply to any amendment of this Constitution made under Article 368" was inserted in Article 13 and Article 368 was renumbered as clause (2). The marginal heading to that article was substituted namely "Power of Parliament to amend the Constitution and procedure therefore" in the place of "Procedure for amendment of the Constitution". Before renumbered clause (2), clause (1) was in serrated. In the renumbered clause (2) for the words "it shall be presented to the President for his assent upon such assent being given to the Bill", the words "it shall be presented to the President who shall give his assent to the Bill and the reupon" was substituted. After the renumbered clause (2), clause (3) was inserted, namely: "Nothing in Article 13 shall apply to any amendment made under this article".The impugned ConstitutionAmendment, 1971 Was passed by the Parliament and it received the assent of the President on December 28, 1971. By this Act, Articles 291 and 362 were omitted and Articlewas inserted under the title "Recognition granted to Rulers of Indian States to cease and privy purses to be abolished". By the same Amendment Act, an amended new clause was substituted to the then existing clause (22).After the impugnedAmendment was brought into force w.e.f. December 28, 1971, the present Writ Petition No. 351 of 1972 was filed on August 24, 1972 for declarations that theth Amendment Acts of 1971 are unconstitutional, invalid, ultra vires, null and void and that the petitioner continues to be entitled to the privy purse and to personal rights, privileges as a Rule r and for a writ or order directing the respondent to continue to pay privy purse to the petitioner. Another Writ Petition No. 352 of 1972 was filed by H.H. Nawab Mohammed Iftikhar Ali Khan of Malerkotla seeking same relief as in Writ Petition No. 351 ofboth these writ petitions i.e. W.P. Nos. 351 and 352 of 1972 were listed together, on August 28, 1972, this Court passed the following order:"Upon hearing for the Parties, the Court directed issue of Rule Nisi and directed these petitions to be heard along with Writ Petition No. 135 of 1970. Respondents granted time till end of September 1972 to file counter affidavit to the writ petitions. Notice of the writ petitions shall issue to theof all the States. All the writ petitions to be heard on October 23, 1972. Written arguments dispensed with."In pursuance of the said order, Writ Petition No. 351 of 1972 is now before this Constitution Bench for determination of the constitutional validity of the TwentySince the constitutional validity of the same Twentysixth Amendment Act is involved in Writ Petition No. 798 of 1992, it is also before this Bench along with Writ Petition No . 351 of 1972.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 w ho through their representatives in the Constituent Assembly hammered out for themselves a new Constitution in which all were citizens, in a new order having but one tie, and owing but one allegiance, devotion, loyalty, fidelity, to the Sovereign Democratic Republic that is India as was eloquently stated by Bose, J., in Virendra Singh v. State of U. P. 13"At one stroke all other territorial allegiances were wiped out and the past was obliterated except where expressly preserved; at one moment of time the new order was born with its new allegiance springing from the same source for all, grounded on the same basis: the sovereign will of the peoples of India with no class, no caste, no race, no creed, no distinction........The Princes were first stripped of their three vital functions defence, foreign affairs and communications. They were then urged to transfer internal government to popular movements inside their respective States. In recompense they were allowed to retain their titles, dignities and immunities and were given generous privy purses. It was in this context Articles 291 and 362 were brought into the Constitution.125. Likewise, Article 366(22) defined the "Ruler".126. On September 2, 1970, a BillAmendment Bill, 1970) was introduced omitting these articles. Though it was passed in the Lok Sabha it could not obtain the requisite majority ofof the members present in voting in the Rajya Sabha. Therefore, the motion for introduction of the Bill was declared lost. Immediately thereafter the President of India in exercise of his power under clause (22) of Article 366 of the Constitution signed an instrument withdrawing recognition of all the Rulers.Thereupon, the order was challenged in this Court under Article 32 of the Constitution of India. In Madhav Rao Scindia v. Union ofit was held that the order of the Presidentderecognising the Rulers wasultra 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 theAmendment to the Constitution was introduced. The following tabulated statement will bring out the legal position as is obtainable after. The validity of this amendment was challenged which came up for consideration in Kesavananda Bharati v. State of Kerala. The Court after holding that the basic structure of the Constitution cannot be amended directed by its judgment dated April 24, 1973 that the Constitution Bench will determine the validity of the ConstitutionAmendment) Act, 1971 in accordance with law and the cases are remitted to the Constitution Bench for disposal in accordance with law.128. This is how the matter comes before us.

Court's reasoning:
75. Therefore, there cannot be any justification in saying that the guarantees and assurances given to the Rulers were sacrosanct and that Articles 291 and 362 reflected only the terms of the agreements and covenants. In fact as soon as the Constitution came into force, the Memoranda of Agreements executed and ratified by the States and Union of States were embodied in formal agreements under the relevant articles of the Constitution and no obligation flowed from those Agreements and Covenants but only from the Constitutional provisions. To say differently, after the introduction of Articles 291 and 362 in the Constitution, the Agreements and Covenants have no existence at all. The reference to Covenants and Agreements was casual and subsidiary and the source of obligation flowed only from the Constitution. Therefore, the contention urged on the use of the words guaranteed or assured is without any force and absolutelyone cannot be allowed to say that the above said omitted articles and unamended clause were the essential part of the constitutional scheme. So they have to be read only in the context of a challenge made to the Presidential Order which sought to render nugatory certain rights guaranteed in the Constitution which were then existing. In any event, the constitutional bar of Article 363 denudes the jurisdiction of any Court in disputes arising from covenants and treaties executed by the Rulers. The statement of Objects and Reasons ofAmendment clearly points out that the retention of the above articles and continuation of the privileges and privy purses would be incompatible with the egalitarian society assured in theConstitution and, therefore, in order to remove the concept of rulership and terminate the recognition granted to Rulers and abolish the privy purses, this Amendment was brought on being felt necessary.The right to property even as a fundamental right was not a part of the basic structure and even assuming that the right to privy purse is a property, it is a right capable of being extinguished by authority of law vide ArticleNeedless to emphasise, according to t he rules laid down in KesavanandaBharati4 that even the fundamental right can be amended or altered provided the basic structure of the Constitution is not damaged in any way.96. Permanent retention of the privy purse and the privileges of rights would be incompatible with the sovereign and republican form of Government. Such a retention will also be incompatible with the egalitarian form of our Constitution. That is the opinion of the Parliament which acted to repeal the aforesaid provisions in exercise of its constituent power. The repudiation of the right to privy purse privileges, dignities etc. by the deletion of Articles 291 and 362, insertion of Articleand amendment of clause (22) of Article 366 by which the recognition of the Rulers and payment of privy purse are withdrawn cannot be said to have offended Article 14 or 19(g) [sic 19(1)(f) and we do not find any logic in such a submission. No principle of justice, either economic, political or social is violated by theAmendment. Political justice relates to the principle of rights of the people, i.e. right to universal suffrage, right to democratic form of Government and right to participation in political affairs. Economic justice is enshrined in Article 39 of the Constitution. Social justice is enshrined in Article 38. Both are in the directive principles of the Constitution. None of these rights are abridged or modified by this Amendment. We feel that this contention need not detain us any more and, therefore, we shall pass on to the next point in debate.97.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 degenerated into a game of manoeuvre presumably as a deceptive plan or action.This argument based on the ground of breaking of solemn pledges and breach of promise cannot stand much scrutiny. To say that without voluntary accession, India i.e. Bharat would be fundamentally different from that Bharat that came into be ing prior to the accession is untenable much less inconceivable. We have already dealt with the necessity of the Rulers to accede to the integration of States with the Dominion of India in the earlier part of this judgment and, therefore, it is quite unnecessary to reiterate in this context, except saying that the integration could have been achieved even otherwise. One should not lose sight of the fact that neither because of their antipathy towards the Rulers nor due to anyxeno phobia, did the Indian Government entertain the idea of integration but because of the will of the people. It was the people of the States who were basically instrumental in the integration ofIndia.To say in other words, the States were free but not stable because of the stress and strain they underwent both from inside and outside. Though the process of integration and democratisation called as "unionization" in the words of Sardar Patel, was undertaken step by step at various stages, multiple forces, such as political, economic and geographic, more so the democratic movement within the States accelerated the process of integration. Therefore, it is a misnomer to say that the Rulers made their sacrifices for which they were given just compensation and assured permanent payment of privy purses. What was given to the Rulers was a political pension as rightly pointed out in Usmanali case on consideration of their past position. Hence there is no question of breaking of solemn pledges or breach of promises etc. given to the Rulers. Therefore, the repudiation of the same cannot be said to have amounted to any breach of those guarantees and promises resulting in alteration of the basic structure of theIn 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.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 Twentysixth Amendment. The removal o f Articles 291 and 362 has not made any change in the personality of the Constitution either in its scheme or in its basic features, or in its basic form or in its character. The question of identity will arise only when there is a change in the form, character and content of the Constitution. In fact, in the present case, the identity of the Constitution even on the tests proposed by the counsel of the writ petitioners and interveners, remains the same and unchanged.After carefully going through the above decisions which relate to service matters, we are afraid that such an argument as one made by Mr Nariman could be substantiated on the principles laid down in these two decisions that Article 14 will be violated if unequals are treated as equals.16 In our considered opinion this argument is misconceived and has no relevance to the facts of the present case. One of the objectives of the Preamble of our Constitution is "fraternity assuring the dignity of the individual and the unity and integrity of the nation". It will be relevant to cite the explanation given by Dr Ambedkar for the word "fraternity" explaining that "fraternity means a sense of common brotherhood of all Indians". In a country like ours with so many disruptive forces of regionalism, communalism and linguism, it is necessary to emphasise andthat the unity and integrity of India can be preserved only by a spirit of brotherhood. India has one common citizenship and every citizen should feel that he is Indian first irrespective of other basis. In this view, any measure at bringing about equality should be welcome. There is no legitimacy in the argument in favour of continuance of princely privileges. Since we have held that abolition of privy purses is not violative of Article 14, it is unnecessary for us to deal with the cases, cited by Mr Nariman, which according to him go to say that any law violating Article 14 is equally violative of the basic structure of the Constitution, inasmuch as Article 14 is held to be a basic postulate of the Constitution.As repeatedly pointed out supra , theonly question is whether there is any change in the basic structure of the Constitution by deletion of Articles 291, 362 and by insertion of Articled amendment of clause (22) of Article 366.We have already answered this question in the negative observing that the basic structure or the essential features of the Constitution is/are in no way changed or altered by the impugned Amendment Act. We cannot make surmises on ifs and buts and arrive at any conclusion that Articles 291 and 362 should have been kept intact as special provisions made for minorities in the 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 bedrock on which the constitutional fabric has been raised. The distinction between the erstwhile Rulers and the citizenry of India has to be put an end to so as to have a common brotherhood.