# RAGHUNATHRAO GANPATRAO ETC. ETC v. > ) UNION OF INDIA

- **Citation:** [1993] 1 S.C.R. 480
- **Court:** Supreme Court of India
- **Decided:** 1993-02-04
- **Case number:** WRIT PETITION NO. 351 OF 1992
- **Bench:** L.M. Sharma, S. Ratnavel Pandian, B.P. Jeevan Reddy, S.P. Bharucha, S. Mohan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raghunathrao-ganpatrao-etc-etc-v-union-of-india-11896
- **Pages:** 89

## Headnote

'
Constitution of India, 1950-,4rticles 291, 362, 366 (22) and 363-A-
..a.:
i
Constitutio:1 (Twenty-Sixth Amendment) Act, 1971-Constitutional validity
c of-Whether violates basic structure and essential features of the Constitution.
Constitution of India 1951>-Article 368--Power of amendmentLimitations.
,.
Constitution of India, 1951>-Articles 14, 19( 1)(/), 21, 31( 1), (2), 291,
..;t
r
D 362, 368-Constitution (Twenty-Sixth Amendment) Act, 1971-Abolition of
privy purses-Whether violative of Article 14-W/tether personality of Constitution c/1anged--Wliether theory of political justice tenable.
'
Constitution of India, 1951>-Articles 291, 362, 368-Constitution
(Twenty-Sixth Amendment) Act, 1971-Abolition of privy purses-Whether
E Articles 29 I, 362 organic unity of India facilitated.
~
Constitution of India, 1951>-Articles 291, 362, 368-Constituti011
(Twenty-Sixth Amendment) Act, 1971-Abolition of privy purses-Will of tl1e
people expressed through Parliament-Court's duty whether to concern with
F
moral aspect of amendments.
WRIT PETITION NO. 351 OF 1992
-{
The petitioner was a Co-Ruler of an Ex-Indian State of Kurundwad.
,..
His Co-Ruler, on behalfof both, executed an instrument of accession under
•
G Section 5 of the Government of India Act, 1935 and their State became a
lc '
part of the Dominion of India. A Merger Agreement was executed on the
'll
19th February, 1948 and the administration of the State of the petitioner
I
was also handed over to the Dominion Government on the 8th March,
.....
1948.
H
The case of the petitioner was that uuder the Merger Agreement he
1
480
~
RAGHUNATII v. U.0.1.
481
was entitled to receive annually from the revenues or the State his privy A
purse as specified in the Merger Agreement.
Certain groups of States entered into covenants for the estab·
llshment 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
i11ter·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 or India.
In pursuance of Article 366(22) of the Constitution or India, the
petitioner was recognized as the Ruler of the Kurundwad State with effect
B
c
;-
from 26th January, 1950 and had been in the enjoyment of the privy purse, D
privileges, titles and dignities issued by Merger Agreement, and by the
Constitution of India.
The Parliament enacted the Constitution (Twenty-Sixth Amend·
meot) 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 or their recognition already
accorded to them and declaring the aboliti.on of the privy purse and
extinguishing their rights and obligation in respect of privy purse.
E
The petitioner filed the writ petition challenging the impugned F
Amendment Act as unconstitutional and violative and the fundamental
rights of the petitioner guaranteed under Articles 14, 19(1)(1), 21 and
31 (1),(2) of the Constitution.
In the Writ Petition No. 351/72, I.A. Nos. 1 to 3 of 1992 were filed
by the daughters of Late ¥aharaja of Mysore.
G
WRIT PETITION NO. 798 OF 1992
The petitioner was the successor to the Ruler of Mysore also chal·
leuged the Constitution (26th Amendment) Act or 1971 OD the same
grounds as in Writ Petition No. 351/72.
H
482
SUPREME COURT REPORTS
(1993) 1 S.C.R.
A
The petitioner in W.P. No. 351/72 submitted that Articles 291, 362
and 366(22) of the Constitution were integral part of the constitutional
scheme and formed the important basic structure since the underlying
purpose of these Articles was to facilitate stabilization of the new order
and ensure organic unity of India; that the deletion of the Articles djtmaged
B and

## Text

_Characters 0–38,676 of 199,056. This is a partial read: ask again with offset=38676 for what follows._

A
RAGHUNATHRAO GANPATRAO ETC. ETC.
v.
>..
)
UNION OF INDIA
l::
FEBRUARY 4, 1993
~j
B
[L.M. SHARMA, CJ., S. RATNAVEL PANDIAN, B.P. JEEVAN
REDDY, S.P. BHARUCHA AND S. MOHAN, JJ.]
'
Constitution of India, 1950-,4rticles 291, 362, 366 (22) and 363-A-
..a.:
i
Constitutio:1 (Twenty-Sixth Amendment) Act, 1971-Constitutional validity
c of-Whether violates basic structure and essential features of the Constitution.
Constitution of India 1951>-Article 368--Power of amendmentLimitations.
,.
Constitution of India, 1951>-Articles 14, 19( 1)(/), 21, 31( 1), (2), 291,
..;t
r
D 362, 368-Constitution (Twenty-Sixth Amendment) Act, 1971-Abolition of
privy purses-Whether violative of Article 14-W/tether personality of Constitution c/1anged--Wliether theory of political justice tenable.
'
Constitution of India, 1951>-Articles 291, 362, 368-Constitution
(Twenty-Sixth Amendment) Act, 1971-Abolition of privy purses-Whether
E Articles 29 I, 362 organic unity of India facilitated.
~
Constitution of India, 1951>-Articles 291, 362, 368-Constituti011
(Twenty-Sixth Amendment) Act, 1971-Abolition of privy purses-Will of tl1e
people expressed through Parliament-Court's duty whether to concern with
F
moral aspect of amendments.
WRIT PETITION NO. 351 OF 1992
-{
The petitioner was a Co-Ruler of an Ex-Indian State of Kurundwad.
,..
His Co-Ruler, on behalfof both, executed an instrument of accession under
•
G Section 5 of the Government of India Act, 1935 and their State became a
lc '
part of the Dominion of India. A Merger Agreement was executed on the
'll
19th February, 1948 and the administration of the State of the petitioner
I
was also handed over to the Dominion Government on the 8th March,
.....
1948.
H
The case of the petitioner was that uuder the Merger Agreement he
1
480
~
RAGHUNATII v. U.0.1.
481
was entitled to receive annually from the revenues or the State his privy A
purse as specified in the Merger Agreement.
Certain groups of States entered into covenants for the estab·
llshment 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
i11ter·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 or India.
In pursuance of Article 366(22) of the Constitution or India, the
petitioner was recognized as the Ruler of the Kurundwad State with effect
B
c
;-
from 26th January, 1950 and had been in the enjoyment of the privy purse, D
privileges, titles and dignities issued by Merger Agreement, and by the
Constitution of India.
The Parliament enacted the Constitution (Twenty-Sixth Amend·
meot) 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 or their recognition already
accorded to them and declaring the aboliti.on of the privy purse and
extinguishing their rights and obligation in respect of privy purse.
E
The petitioner filed the writ petition challenging the impugned F
Amendment Act as unconstitutional and violative and the fundamental
rights of the petitioner guaranteed under Articles 14, 19(1)(1), 21 and
31 (1),(2) of the Constitution.
In the Writ Petition No. 351/72, I.A. Nos. 1 to 3 of 1992 were filed
by the daughters of Late ¥aharaja of Mysore.
G
WRIT PETITION NO. 798 OF 1992
The petitioner was the successor to the Ruler of Mysore also chal·
leuged the Constitution (26th Amendment) Act or 1971 OD the same
grounds as in Writ Petition No. 351/72.
H
482
SUPREME COURT REPORTS
(1993) 1 S.C.R.
A
The petitioner in W.P. No. 351/72 submitted that Articles 291, 362
and 366(22) of the Constitution were integral part of the constitutional
scheme and formed the important basic structure since the underlying
purpose of these Articles was to facilitate stabilization of the new order
and ensure organic unity of India; that the deletion of the Articles djtmaged
B and demolished the very basic structure of the Constitution; "that the
covenants entered into were in the nature of contracts which was guaran·
teed constitutionally and affirmed by making the privy purse an expendi·
ture charged under the Consolidated Fund of India; t~at the deletion of
,I;
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
C the privy purses which were given ti(them as consideration for surrendering all their sovereign rights and contributing to the uuity 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
D 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
(1\venty-Sixth Amendment) Act was unconstitutional, null, void and viola·
tive of Articles 14, 19(1) (g), 21, 31(1) and (2) of the Constitution; and that
Articles 291 and 362 when incorporated were intended to grant recognition
E 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.
F
The petitioner in I.A. No. 3 submitted that the fact that the expres·
G
sion "guarantees" occurring both in Article 32 and Article 291 besides in
Article 362 ('guarantee') clearly de111oostrated the mind of the Constitution-makers that they intended ilie"il.td'provisions of Articles 291 and 362
to he the basic and essential structure of the Constitution.
The petitioner in I.A. No. l contended that the erstwhile rulers of the
princely States formed a class apart and there was real and substantial
distinction between them and the citlzenary of India; that the la)lllllled
amendmellt )'hich violated the basic structure of'. the C011Stitlltion was
unconstltutiODal; that the-Amendment Act was violative of the essential
H features contained in Articles 14 and 19(1)(1).
)..
RAGHUNATH v. U.0.1.
483
The petitioner in W.P. No. 798192 added that the two Articles were A
not at all amendable on the principle or prohibition against impairment
or 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 impermissible 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 or the Constitution and that the authority or
B
the Parliament to amend the Constitution under Article 368 could be C
exercised only if the Amendment in the Constitution was justifiable and
necessitated because of the soci~onomic reasons broadly referred to in
the directive principles of the State Policy and that aay Amendment
unrelated to any gmnlne compulsion amounts to an abuse of the power
and was therefore a fraud on the exercise of power itself.
D
Respondent Union of India contended that the Instruments or 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 or 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 ingredi.ents as the basis could be read into these agreements and that·
E
the guarantees and assurances embodied in Articles 291 and 362 were
guarantees for the payment of privy purses; that such a guarantee could
F
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 d.id 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 G
adult slllrrage, democratic form of Government etc.
Dlsinlssing the Writ Petitions and the I.As~ this court,
HELD : (By Full Court) ; The Constitution (Twenty-Sixth Amendment) Act of 1971 Is valid In its entirety. [529GI
H
484
SUPREME COURT REPORTS
[1993] 1 S.C.R.
A
Per S. Ratnavel Pandian, J. on his behalf and on behalf of the Chief
B
Justice of India, B.P. Jeevan Reddy and S.P. Barucha, JI.:
1.01. The only question is whether there is any change in the basic
structure of the Constitution by deletion of Articles 291, 362 and by
insertion of Article 363A and amendment of clause (22) of Article 366. The
question is answered in the negative observing that the basic structure or
the essential feature of the Constitution is/are in no way changed or altered
/
by the Constitution (Twenty-Sixth Amendment) Act of 1971. [529D]
1.02. in our democratic system, the Constitution is the supreme law
C of the land and all organs of the government-executive, legislative and
judiciary derive their powers and authority from the Constitution. A
distinctive feature of our Constitution is its amendability. [518G]
1.03. The power of amendment is plenary and it includes within
itself the power to add, alter or repeal the various Articles of the ConstituD lion inclnding those relating to fundamental rights, but the power to
~
E
F
amend does not include the power to alter the basic structure or.
framework of the Constitution so as to change its identity. In fact, there
are inherent or implied limitations on the power of amendment under
Article 368. [515G]
1.04. There are specific provisions for amending the Constitution.
The amendments had to be made only under and by the authority of the
Constitution strictly following the modes prescribed, of course, subject to
the limitations either inherent or implied. The said power cannot be
limited by any vague doctrine of repugnancy. There are many outstanding
Interpretative decisions delineating the limitations so that the Constitutional
fabric may not be impaired or damaged. The amendment which is a change
or alteration is only for the purpose of making the Constitution more perfect,
etfective 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
G result in abrogation or destruction of its basic structure or loss of its original
identity and character and render the Constitution unworkable. (5198-D]
1.05. The Courts are entrusted with important Constitutional
responsibilities of upholding the supremacy of the Constitution. An
amendment of a Constitution becomes ultra vires if the same contravenes
H or transgresses the limitations put on the am•nding power because there
A.
RAGHUNATH v. U.0.1.
485
is no touchstone outside the Constitution by which the validity of the exercise A
of the said powers conferred by it can be tested. [518H, 519A)
1.06.
The Court is not concerned with the wisdom behind or
propriety of the Constitutional amendment because these are the matters
for those to consider who are vested with the authority to make the
Constitutional amendment. All that the Court is concerned with are (1) B
whether the procedure prescribed by Article 368 is strictly complied with?
)<.
and (2) whether the amendment has destroyed or damaged the basic
structure or the essential features of the Constitution. [519D·E]
1.07. If an amendment transgresses its limits and impairs or alters C
the basic structure or essential features of the Constitution then the Court
has power to undo that amendment. [519F]
1.08. No principle of justice, either economic, political or social is
violated by the Twenty-sixth Amendment. Political justice relates to the
principle of rights of the people, i.e., right to universal suffrage, right to D
democratic form of Government and right to participati.on in political
affairs. Economic justice is enshrined in Article 39 of the Constitution.
None of these rights are abridged or modified by this Amendment. [523C)
1.119. There is no question of change of identity on account of the E
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. [527G]
1.10. A moral obligation cannot be converted into a legal obligation.
Courts are seldom concerned with the morality which is the concern of the
law makers. [527D-E]
F
1.11.
In a country like ours with so many disruptive forces of G
regionalism, communalism and linguism, ii 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 lirst irrespective of other basis. In this
view, any measure at bringing about equality should be welcome. There is
DO legitimacy In -the argument in favour of continuance or princely H
486
SUPREME COURT REPORTS
[ 1993] 1 S.C.R.
A privileges. Abolition of privy purses is not violative of Article 14. [528F)
1.12. The Court cannot make surmises on 'ifs' and 'buts' and arrive
to any conclusion that Articles 291 and 362 should have kept i.n 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
B transcending all the regional, linguistic, religious and other diversities
which are the bed-rock on which the constitutional fabric bas been raised.
The distinction between the erstwhile Rulers and the citizenary of India
;lt
has to be put an end to so as to have a common brotherhood. [529E·F]
C
Nawab Usmanali Khan v. Sagamial (1965] 3 SCR 201; H.H.
Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union
of India, [1971) 3 SCR 9; Minerva Mills v. Union of India, [1980] 3 SCC
625; His Holiness Kesavananda Bharati Sripadaga/avarn v. State of Kera/a
and Another, [1973] 4 SCC 225; Shankari Prasad v. Union of India, [1952)
SCR 89; Sajjan Singh v. State of Rajasthan, [1965) l SCR 933 at 966; Golak
~
D Nath v. State of Punjab, [1967] 2 SCR 762 AIR 1967 SC 1643; Rustom
Cawasjee Cooper v. Union of India, [1970] 3 SCR 530; Waman Rao and
Others v. Union of India and Others, [1980) 3 SCC 587 at 588-89; Maharao
Sahib Shri Bliim Singhji v. Union of India and Others, [1981] l SCC 166 at
212; Madliav Rao v. Union, (1971) 3 SCR 9 at 74 and 83; Indira Nehrn
E
Gandhi v. Raj Narain, [1975] Suppl. SCC l; Sanjeev Coke Manufacturing
·~
Company v. Bharat Cooking Coal Ltd., [1983) l SCC 147, Varinder Singh
& Ors. v. State of U.P., [1955] SCR 415 at 435; Maneka Gandhi v. Union
of India, [1978] 2 SCR 621; R.D. Shetty v. International Airport Amhority
of India, (1979] 3 SCC 489; Kasturi Lal Lakshmi Reddy v. State of Uttar
Pradesh, (1986] 4 SCC 704; E.P. Royappa v. State of Tamil Nadu, [1974]
F 2 SCR 348; Krishna Kumar v. Union of India, (1990] 4 SCC 207; Md. Usman
& Ors. v. State of Andhara Pradesh and Ors., [l97li Suppl. SCR 549; Ramesh
-{
Prasad Singh v. State of Bihar & Ors., [1978] l SCR 787, referred to.
Report of the Joint Select Committee Oil Indian Constitutional Refonns
G (1933-34); Report of the Expert Committee headed by Nalini Ranjan Sarlcar
(published in December, 1947), Report of the Indian States' Finances
Enquiry Committee, chaired by Sir V.T. Krisbanamac.hary (appointed
on 22nd October, 1948). Report of the Rau Committee chaired by Sir
. >-
B.N. Rau (appointed in November, 1948); Dias: Jurisprndence, Fifth
Edition, at pages 355 and 356; Bentham : Theory of Legislation, Chapter
H XII at page 60, referred to.
RAGHUNATH v. U.0.1.
487
Per S. Mohan, J. (Concurring)
1.01. One of the tests of identifying the basic feature is, whether the
ide.ntity of the Constitution has been changed. [537 A)
A
1.02. The personality of the Constitution must remain unchanged.
It is not necessary that the constitutional amendment which is violative of. B
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. [5378)
1.03. The test to be applied, therefore, is whether the amendment
contravenes or runs counter to an imperative role or postulate which is an C
integral part of the Constitution. [5378)
1.04. Turning to basic structure, the proper test for determining
basic feature is to find out what are not basic features. Rights arising out
of covenants which were non-justiciable cannot be regarded as basic
feature. Where, therefore, Article 363 makes these features non-justiciable, D
the question of basic feature does not arise. [539H, 540A)
1.05. The guarantees in Articles 291 and 362 are guarantees for the
payment of privy purses. Such a guarantee can always be revoked in public
interest; more so, for fulfilling a policy objective or the directive principles E
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-EJ
F
1.(16. If the 26th amendment aims to establish an egalitarian society
which is in consonance with the glorious preamble, bow 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 G
part of the Constitution. Apart from the fact that all these reasons were
addressed against the President under Article 366(22), this Statement
cannot tantamount to basic structure. Nor would it mean the same as the
basic structure. [559G-HJ
1.07. To determine whether these provisions constitute basic struc- H
488
SUPREME COURT REPORTS
(1993) 1 S.C.R.
A
lure or not, they cannot be viewed in the historic background. By repeal of
these provisions the personality of the Constitution has not changed. India
)...
B
could still retain its identity and it can hardly be said that the personality
has changed. [560A)
1.08. The repudiation of the guarantees might result in the nullification of a just quid pro quo. But, if it is the will of the people to establish an
egalitarian society that will be in harmony with the changing of times. It
cannot be denied that law cannot remain static for all times to come. [560C)
1.09 Unity and integrity of India would constitute the basic structure
C as laid down in Kesavananda'i case but it is too far fetched aclaim lo 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
D 362 facilitated the organic unity of India is unacceptable. [562E-FJ
E
1.10 In this case, the amendment does not either treat unequals as
equals or in any manner violates Article 14. All the privy purses holders
are treated alike by the withdrawal of all those privileges. [565E)
1.11. This Court cannot concerns itself with the moral aspect of the
impugned amendment. The impugned amendment is the will of the people
expressed through Parliament. [568A]
Viremira Singh and Others v. State of Ullar Pradesh, AIR 1954 SC 447
F at 454; H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur &
Ors. v. Union of India, (1971) 3 SCR 9; His Holiness Kesavananda Bharati
Sripadagalavam v. State of Kera/a, (1973) Supp. SCR l; Waman Rao and
-{
Others v. Union of India and others, (1980] 3 SCC 587 at 588-89; Maharao
Sahib Shri Bhim Singh Ji v. Union of India & Ors., (1981) 1 SCC 166 at 212;
Indira Nehrn Gandhi v. Raj Narain, [1975) Supp. SCC 1 at 252; Ajay Hasia
G v. Khalid Mujib Sehravardi, (1981) 1 SCC 722; Minerva Mills Ltd. v. Union
of India & Ors., (1981] 1 SCR 206 & {1986) 3 SCR 718; O.N. Mohindroo
v. District Judge, Delhi, (1971] (III) SCC 9; Mohan/a/ Jain v. His Holiness
Maharaja Shri Swai Man Singh Ji, (1962) 1 SCR 702; Ramesh Prasad Singh
v. State of Bi/Jar& Ors., (1978] l SCR 787 at 793; Nagpur Improvement Trnst
H & _Another v. Vitha/ Rao & Ors., [1973) 3 SCR 39; Usman Ali Khan v. Sagar
,..
RAGHUNATH v. U.0.1. [PANDIAN, J.)
489
Mal, (1965) 3 SCR 201; Golak Nath v. State of Punjab, (1967) 2 SCR 762; A
Weems v. United States, 54 Law Edition 801; Francis Coralie Mullin v.
Administrator, Union Territory of Delhi & Ors., (1981) 1 SCC 608 at 617,
referred to.
"The Framing of India's Constitution' : Sy B. Shiva Rao at page 520;
Robert S. Peck: 'The Bill of Rights & the Politics of Interpretation", at page
316-317; "Law and Morality": By Louis Blom Cooper Gavin Drewry at page
2; Kent Greenawalt : "Conflicts of Law and Morality'', 1987 Edition at page
338, referred to.
B
ORIGINAL JURISDICTION : Writ Petition {Civil) Nos. 351n2 and C
798 of 1992.
{Under Article 32 of the Constitution of India).
G. Ramaswamy, Attorney General, Soli J. Sorabjee, H.N. Salve, G.L.
Sanghi, Dr. V. Gaurishankar, D.D. Thakur, A.K. Ganguli, J.B. D
Dadachandj~ Mrs. A.K. Verma, Sunil Gupta, S. Sukumaran, Manmohan,
Mrs. S. Pathak, S. Rajappa, Ms. A. Subhashini, P. Parmeshwaran, C.V.S.
Rao, R.F. Nariman, M.P. Vinod, R. Nagendra Naidu, N.N. Bhatt, C.N.
Sreekumar, Picha~ D. Goburdhan, Santokh Singh, Ms. M. Karanjawaia,
Anip Sachthey and G. Prakash for the appearing Parties.
E
The Judgments of the Court were delivered by
S. RATNAVEL PANDIAN, J. These two Writ Petitions call in question the constitutional validity of the Constitution (Twenty-sixth Amendment) Act of 1971 inter-a/ia, on the ground that it violates the basic F
structure and essential features of the Constitution of India and is, therefore, outside the scope and ambit of constituent powers of the Parliament
to amend the Constitution as provided under Article 368 of the Constitution. In addition, certain directions or suitable orders are sought for
declaring that the petitioner continue to be the Rulers or the 'Successor G
Rulers', as the case may be and directing the respondent - Union of India
to continue to recognise their personal rights, amenities and privileges as
Rulers of their erstwhile States and also continue to pay privy purse to
them in addition to their arrears of amounts. For facilitating a proper
understanding of the controversy that bas led to the filing of these two Writ
Petitions and the Interloculatory Applications 1 to 3 of 1992 in Writ H
490
SUPREME COURT REPORTS
(1993) 1 S.C.R.
A
Petition No. 351 of 1972, a synoptical resume of the case as adumbrated
in Writ Petition No. 351172 with the historical background may be stated :
B
The petitioner, Shri Raghunathrao Raja was the Co-Ruler of Indian
State of Kurundwad Jr. which was prior to 15th August, 1947 a sovereign
State in treaty relationship with, and under the suzerainty of the Britisb
Crown.
On the commencement of the Indian Independence Act, 1947,
British Paramountcy lapsed and the Indian States became completely
sovereign and independent. They were free to accede to either of the two
C Dominions of India or Pakistan or to remain independent. The petitioner's
co-Ruler, on behalf of both, executed an instrument of.accession under
Section 5 of the Government of India Act, 1935, as adopted under the
Indian Independence Act, 1947. This instrument was accepted by the
Governor General of India and the State thus became a part of the
D Dominion of India. Likewise, Rulers of most of the other Indian States also
executed similar instruments which were accepted by the Governor
General. By the said instrument, the petitioner accepted the matters
specified in the schedule thereto as matters with respect to which the
Dominion Legislature may make laws for the State and declared his intent
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that the Governor General of India, the dominion Legislature, the Federal
Court and any other Dominion authority established for the purposes of
the Dominion shall, subject to the terms of the instrument, exercise in
relation to the Kurundwad State such functions as may be vested in them
by the Government of India Act, 1935 as in force in the Dominion of India
on the 15th August, 1947. According to the petitioner, clause 7 of the
Instrument provided that nothing therein shall be deemed to commit the
Ruler in anyway to acceptance of any future Constitution of India or to
fetter his discretion to enter into agreements with the Government of India
under ahy such future Constitution. Subsequently, a number of Rulers
executed Agreements of Merger and transferred the administration of their
States to the Dominion Government. The Merger Agreement was in the
G form given in the 'White Paper on Indian States' and it was executed on
the 19th February, 1948. Then the administration of the State of the
petitioner was handed over on the 8th March, 1948.
The case of the petitioner is that under the Merger Agreement he
H was entitled to receive annually from the revenues of the State his privy
RAGHUNATii v. U.0.1. (PANDIAN, J.)
491
purse as specified in the Merger Agreement (as amended by an order of A
Government of India in 1956) free of tID<es, besides reserving his personal
rights, privileges and dignities.
Certain groups of States entered into covenants for the establishment
of United States comprising the territories· of the covenanting States and B
Talukas with a common executive, legislature and judiciary. The covenants
inter-a/ia provided for the administration of United States by a Rajpramukh
aided and advised by a Council of Ministers. They also envisaged the
establishment of a Constituent Assembly charged with .the duty to frame
Constitution for the United States within the frameworl< of convenants and
of the Constitution of India. Each of the covenants was concurred in by C
the Government of India which guaranteed all its provisions including
provisions relating to the privy purse, personal privileges etc. etc. However,
it was later desired that the Constitution of the United States should also
be framed by the Constituent Assembly of India and form part of the
Constitution cif India. It was decided in consultation with the Government D
of the ·United States that the Constitution of India as framed by the
Constituent Assembly of India should itself contain all the necessary
provisions governing the constitutional structure of the United States as
well as the provisions for the guarantee contained in the covenants and the
Merger Agreements. In pursuance of this decision the necessary provisions
including part VII providing for the Government, legislature, judiciary, etc.
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
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of India. Accordingly on 13th October, 1949 the Constituent Assembly of
India adopted inter-alia two Articles- namely, Article 291 relating to
payment of privy purse and Article 362 relating to personal rights and
privileges of the Rulers. Amendment relating to the United States and
other States which had not merged were also adopted and these States
were called Part 'B' States. The Rulers and Rajpramukhs of the States
agreed to adopt the Constitution as drafted by the Constituent Assembly
of India and issued proclamations directing that the Constitution to be G
adopted by the Constituent Assembly of India shall be the Constitution for
the United States. Supplementary covenants were also executed by the
covenanting States which covenants were concurred in and guaranteed by
Government of India Thereafter, the Constituent Assembly passed and
adopted the Constitution. According to the petitioner, it was only on the H
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A basis of the Constituent Assmebly's acceptance of the provisions of Articles
291, 362 and clause (22} of Article 366 the Rulers adopted the Constitution
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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 recognized as the ruler of the Kurundwad State with effect from 26th
B 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. While it was so, the Parliament e~acted a new Act-namely, the
Constitution (Twenty-Fourth Amendment) ACt of 1971, the Constitution
°"'
(Twenty-Fifth Amendment) Act of 1971 and the Constitution (TwentySixth Amendment} Act of 1971, the last of which received the assent of the
C President on the 28th December 1971. By this Act Articles 291 and 362 of
the Constitution were repelled and a new Article 363-A was inserted,
resulting 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 and new clause (22} to
D 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}(!),
21 and 31 (1) and (2) of the Constitution.
In this Writ Petition, I.A. Nos. 1 to 3 of 1992 have been filed by Smt.
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Kamakshidevi Yavaru, Smt. Vishalakshideviya(u and Smt. Inrakshi Devi,
daughters of late Maharaja of Mysore.
The petitioner in Writ Petition No. 798/92 is the successor to the late
His Highness Sri Jaya Chamaraja Wadiyar, Ruler of Mysore who had ruled
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the State of Mysore from 8th September, 1940 onwards until 23rd January,
1950 when the Treaty/ Agreement was made between the Government of
India and His Highness the Maharaja of Mysore. This petitioner also
challenges the Constitution (26th Amendment) Act of 1971 on the same
grounds as in Writ Petition No. 351n2.
G
Of the various grounds, the most notable is whether the impugned
Act is beyond the constituent power of Parliament and whether it has
altered, destroyed and damaged the basic structure and essential features
of the Constitution. The object of the impugned Act whereby the Parliament has omitted Articles 291, 362, inserted Article 363-A and substituted
H a fresh clause (22) for the orig!nal under Article 366 of the Constitution
RAGHUNATH v. U.0.1. [PANDIAN, J.)
493
was to terminate the privy purses and privileges of the former Indian A
Rulers and to terminate expressly the recognition already granted to them
under those two deleted Articles. According to the learned counsel appearing for the writ petitioners the withdrawal of the guarantees and
assurances given under those articles and the abolition of the privy purse,
personal rights, privileges ~d dignities is in violent breach of the power of B
Parliament acting as a constituent body under Article 368 of the Constitution inasmuch as it not only sought to amend the Constitutiton but also
destroy the basic philosophy, personality, structure and feature of the
Constitution.
Though it is not necessary to narrate in detail the historical events
leading to the transfer of power and the integration of )Jldian States
consequent upon the political and constitutional changes, yet a prefatory
note of the past historical background may be stated so as to have a better
understanding of the policy step taken for the integration of the States in
terms of the consolidation of the country.
Though India is geographically one entity yet throughout its long and
past chequered history it never achieved political homogeneity. There were
about 554 States (subject to a marginal variation as found in various
Reports), out of which the States of Hyderabad and Mysore were left
territorially untouched. Two hundred and sixteen states were merged in the
adjoining provinces in which they were situated, or to which they were
contiguous. Five were taken over individually as Chief Commissioners'
provinces under the direct control of the Government of India besides
twenty-one Punjab Hill States which comprised Himachal Pradesh. Three
hundred and ten were consolidated into six Unions, of which Vindhya
Pradesh was subsequently converted into a Chief Commissioner's province.
Thus, as a result of integration, in the place of 554 states, fourteen administrative units had emerged. This was a physical or geographical consolidation.
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The next step was to fit all these units into a common administrative G
mould. Administration in the erstwhile States was in varying stages of
development and, with a few exceptions it was both personal and primitive.
Such states being Mysore, Baroda, Travancore and Cochin could stand
comparison with their neighbouring provinces and in some respects were
ahead of them. But there were smaller States where, owing mainly to the H
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A slenderness of their resources, the rulers were not in a position to discharge
even the elementary functions of government. Between these two extremes,
there were several States with administrative systems of varying degrees of
efficiency.
In the past, the comparative Indian area covered by the States was
B 48 per cent of the total area of the Dominion. of India, ·the relative
population ratio of the States was 28 per cent of the total population of
the Dominion of India. All the above Indian states formed a separate part
of India before their merger with the rest of India. It.is common knowledge
that the aim of Government of India Act, 1935 was to associate the Indian
C states with the British India as equal partners in loose federation. When
India became independent by the Indian Independence Act of 1947, British
paramountcy in respect of the Indian states lapsed. Therefore, theoretically
though the Rulers became independent in actual fact almost all the Rulers
signed Instruments of Accession in August 1947 surrendering Defence,
D External Affairs and Communications. The Rulers immediately after independence became divided into four classes. All the agreements of merger
and covenants provided for the fixation of the Rulers' privy purse which
was intended to cover all the expenses of the Rulers and their families
including the expenses of their residences, marriages and other expenses
etc. Under the terms of the agreements and covenants entered into by the
E Rulers, privy purses were paid to the Rulers out of the revenues of the
States concerned and payments had so far. been made accordingly. During
the course of the discussion with the Indian States Finances Enquiry
Committee, it was urged by most of the States that the liability for paying
privy purses of Rulers should be taken over by the Centre. Having regard
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to the various factors, it was decided that the payments should constitute
a charge on the Central revenues.
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The privy purses settlements, were, therefore in the nature of consideration for the surrender by the Rulers of all the ruling powers and also
for the dissolution of the States as separate units.
It is stated that the total amount of the privy purse came to about
Rs. 5.8 crores per annum and the quantum of privy purse each year was
liable to reduction with every generation. According to V.P. Menon, who
was the Constitutional Advisor to the Governor General till 1947 and then
H the Secretary to the Ministry of States and closely connected. with the
RAGHUNATH v. U.0.1. [l'ANDIAN, J.]
495
annexation of the princely states "the price paid as Privy Purses was not A
too high for integration and indeed it was insignificant when compared with
what the Rulers had lost." He pointed out that 'the cash balances were to
the tune of Rs. 77 crores and that palaces in Delhi alone were worth several
lakhs of rupees."
It is appropriate to refer to the speech of Sardar Vallabhbhai Patel
made on 12th October 1949 in the Constituent Assembly on the Draft
constitution, on which reliance was placed by the writ petitioners. The
speech reads thus :
"There was nothing to compel or induce the Rulers to
merge the identity of their States. Any use of force would
have not only been against our professed principles but
would have also caused serious repercussions. If the
Rulers had elected to stay out, they would have continued
to draw the heavy civil lists which they were drawing
before and in large number of cases they could have
continu~d to enjoy unrestricted use of the State revenues.
The minimum which we could offer to them as quid pro
quo for parting with their ruling powers was to guarantee
to them privy purses and certain privileges on a reasonable
and defined basis. The privy purse settlements are, therefore, in the nature of consideration for the surrender by
the Rulers of all their ruling powers and also for the
dissolution of the States as seperate units. We would do
well to remember that the British Government spent enormous amounts in respect of the Mahratta settlements
alone. We are ourselves honouring the commitments of
the British Government in respect of the persons of those
Rulers who helped them in consolidating their empire.
Need we cavil then at the small - purposely use the world
: small - price we have paid for the bloodless revolution
which has affected the destinies of millions of our people.
Let us do justice to them; let us place ourselves in their
position and then assess the value of their sacrifice. The
Rulers have now discharged their part of the obligations
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by transferring all ruling powers and by agreeing to the
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integration of their States.