A RAGHUNATHRAO GANPATRAO ETC. ETC.

v.

UNION OF INDIA

FEBRUARY 4, 1993

B (L.M. SHARMA, CJ., S. RATNAVEL PANDIAN, B.P. JEEVAN

REDDY, S.P. BHARUCHA ANDS. MOHAN, JJ.)

Constitution of India, 1950-Artic/es 291, 362, 366 (22) and 363-A­

Constitutio:i (Twenly-Sixth Amendment) Act, 1971-Constitutiotial validity

C of-Whether violates basic structure and essential features of the Constitution.

Constitution

of India

1950-Article 3~ower of amendmen~

Limitations.

Constitution

of

India, 1950-Artic/es 14, 19(1)(/), 21, 31(1), (2), 291,

D 362, 368-Constitution (Twenty-Sixth Amendment) Ac4 1971-Abolition of

privy purses-Whether violative of Article 14-Whether personality of Con­

stitution changed-Whether theory of political justice tenable.

Constitution

of India,

1950-Articles 291, 362, 368-Constitution

(Twenty-Sixth Amendment) Ac4 1971-Abo/ition of privy purses--Whether

E Articles 291, 362 organic unity of India facilitated.

Constitution

of India,

195<>-rlrtic/es 291, 362, 368-Constitution

(Twenty-Sixth Amendment) Ac~ 1971-Abolition of privy purses--WiU of the

people expressed through Parliamen~ourt's duty whether to concem with

F moral aspect of amendment~.

WRIT PETITION NO. 351 OF 1992

The petitioner was a Co-Ruler of an Ex-Indian State of Knrundwad.

His Co-Ruler, on behalf of both, executed an instrument of accession under

G Section S of the Government of India Act, 1935 and their State becalm 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 banded over to the Dominion Government on the 8th Man:h, )-

1948.

H 'Ille case of the petitioner was that nnder the Merger Agreement be

480

RAGHUNATII v. U.0.1. 481

was entitled to receive annually from the revenues of 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.

B 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

c

Constitution drafted by the Constituent Assembly of India.

In pursuance of Article 366(22) 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, D

privileges, titles and dignities Issued by Merger Agreement, and by the

'Constitution of India.

The Parliament enacted the Constitution (1\wnty..Sixth Amend-

ment)

Act of 1971,

repealing Articles 291 and 362 of the Constitution, a

E

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 F

Amendment Act as unconstitutional and violative and the fundamental

rights

of the petitiouer guaranteed under

Articles 14, 19(1)(1), 21 and

A 31(1),(2) of the Constitution.

In the Writ Petition No. 351n2, I.A. Nos. 1 to 3 of 1992 were filed

by the daughters of Late Maharaja of Mysore.

G

WRIT PETITION NO. 798 OF 1992

.... The petitioner was the snccessor to the Ruler of Mysore also chal-

lenged the Constitution (26th Amendment) Act of 1971 on the same

grounds as In Writ Petition No. 35tn2. H

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

A The petitioner in W.P. No. 351172 submitted tbat Articles 291, 362

and 366(22) or the Constitution were integral part of the constitutional

scheme and rormed the important basic structure since the underlying

purpose or these Articles was to racilitate stabilization or the new order

and ensure organic unity or India; that the deletion or the Articles d!unaged

B

and demolished the very basic structure of the Constitution; ~tbat the

covenants entered into were in the nature of contracts which was guaran·

teed constitutionally and affirmed by making the privy purse an expendl-

lure charged under the Consolidated Fund of India; tbat the deletion of

-t

the Articles amounted to a gross breach of the principle of political jnstice

enshrined

in the preamble by depriving or

taking away from the princes

c the privy purses which were given tir1hem as consideration for snrrender·

ing all their sovereign rights and contributing to the uaity and integrity of

the country; that the Rulers acceded

to tbe Dominion of India and

executed

Instruments or Accession aad Covenants in consideration of the pledges

and promises easbriaed in Articles 291 and 362; tbat the Impugned

D

Amendment Act was beyond and outside the scope aad ambit of the

coastitutioaal power or the Parliament to amend the Constitution as

provided under Article 368 of the Constitution; tbat the Constitution

(Twenty-Sixth Amendment) Act was unconstitutional, null, void and viola·

live of Articles 14, 19(1)(g), 21, 31(1) and (2) of the Constitution; and tbat

E

Articles 291 and 362 when Incorporated were intended to grant recognition

to the solemn promises on the strength of which the former Rnlers llgned

to merge with the Indian Dominion and the guarantee of privy pones ud

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 tbat the fact that the expres·

sion "guarantees" occurring both in Article 32 aad Artlcle 291 besides In

illcle 362 ('guarantee') clearly.dtJ!!ilnsti'ated the mind of the Consdtu-

>

tion·mllkers that they intended ~*N' provisions of Articles 291 and 362

to be the basle and essential structure of the Constitution.

G

The petitioner la I.A. No. 1 contended that the erstwblle rukrs of the

princely States formed a class apart and there was real ud sabstantlal

dlstlacdon

behlua them

and the dtlzeaary of Iadla; that die la.....-I

)...

ameacbl!ent "1a1ch vielated the basic straclaft ol'. the C..ut.tioa was

.-titut.ioul; that the -~dmeat Act was violative of the esseatlal

H features CGBtalaed la Artldes 14 and 19(1)(f).

RAGHUNATH v. U.0.1. 483

The petitioner in W.P. No. 798192 added that the two Articles wett 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 or Immorality perpetrated by the India Parliament, that, too,

In the exercise or its constituent powers and the said Amendment Act

constituted

an unholy assault on the spirit

which was impermissible and

B

that the principle or justice, raimess and reasonableness wett beyond the

amending powers or the Parliament; that the equality clause as lnterpttted

~

by this Court in various decisions was the most important and indispen-

sable reatutt or the Constitution and destruction thettar would amount to

changing the basic structutt or the Constitution and that the authority or

the Parliament to amend the Constitution under Article 368 could be c

exercised only Ir the Amendment in the Constitution was justifiable and

necessitated beca•se ol lhe socie«ooomic ttasons broadly ttferttd to in

the directhe prilldples of die State Policy and that uy Amendment

unrelated to 11117 ..... CG111pulsioo amounts to an abuse of the power

~

and was dlerefore a fra•d oo the exercise of power itself.

D

Respondent Union of India contended that the Instruments of Ac-

cession wett only the basic documents but not the individual agttements

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

E

covenants was not that of a contract because a contract was enrorceable

at law while these covenants were made non-justiciable by the Constitution

vide Article 363; that the covenants were political in natutt and that no

lepl Ingredients as the basis could be read into these agreements and that

the guarantees and assurances embodied in Articles 2111 and 362 were

guarantees ror the payment of privy purses; that such a guarantee could

F

always be revoked in public interest pursuant to flllftlllng a policy objective

A..

or the directive principles of the Constitution; that being so, the theory of

sanctity of contract or unamendability of Articles 2111 or 362 did not have

any foundation;

and that the theory of political justice

was also not tenable

because political justice meant the principle or political equality such an

G

adlllt sllll'rage, democratic form of Government etc.

-'

Dlsiaisshag the Writ Petitions and the I.As., this court,

HELD :

(By Full Court) ;

The Constitution ('IWenty-Sixth Amelld-

ment) Act of 11171 is valid in Its entirety. [SlllG] H

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

A Per S. Ratnavel Pandian, I. 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 or the Constitution

by deletion or Articles 291, 362 and by

insertion or Article 363A and amendment or clause (22) of Article 366. The

question is answered in the

negative observing that the basic structure or

the essential reature or the Constitution is/are in no

way changed or altered

by the Constiti!'tion (Twenty-Sixth Amendment) Act or 1971. (5290)

1.02. In our democratic system, the Constitution is the supreme law

C or the land and all organs or the government-executive, legislative and

judiciary derive their powers and authority rrom the Constitution. A

distinctive reature of our Constitution

is its amendability. [518GJ

1.03. The power or amendment is plenary and it includes within

itselr the power to add, alter or repeal the various Articles or the Constitu-

D tion including those relating to rundamental rights, but the power to

amend does not include the power to alter the basic structure or.

rramework or the Constitution

so as to

change its identity. In ract, there

are inherent or implied limitations on the power or amendment under

Article 368. [515G]

E

1.04. There are specific provisions ror amending the Constitution.

The amendments had to

be made only under and by the authority

or the

Constitution strictly rollowing the modes prescribed, or course, subject to

the limitations either inherent or implied. The said power cannot be

limited by any vague doctrine or repugnancy. There are many outstanding

F interpretative decisions delineating the limitations so that the Constitutional

rabrlc may not be impaired or damaged. The amendment which is a change

or alteration is only ror the purpose or making the Constitution more perrect,

elfectlve and meaningful. But at the same time, one should keep guard over

the process or amending any provision or the Constitution so that it does not

G result In abrogation or des1111ction or its basic structure or loss or Its original

Identity and character and render the Constitution unworkable. (5198-D]

1.05. The Courts are entrusted with Important Constitutional

responsibilities or upholding the supremacy or the Constitution. An

amendment or a Constitution becomes ultra vires Ir the same contravenes

H or transgresses the limitations put on the am:ndlng power because there

RAGHUNAIB v. U.0.1. 485

is no touchstone outside the Coostitution by which the validity of the exenise A

of the said powers conferred by it can be tested. [518H, 519AJ

l.Oli. The Court is not con<emed with the wisdom behind or

propriety or the Constitutional amendment be<ause these are the matters

for those to consider who are vested with the authority to make the

Constitutional amendment. All

that the Court is

con<erned with are (1) B

whether the pra<edure prescribed by Article 368 is strictly complied with?

and (2) whether the amendment has destroyed or damaged the basic

structure or the essential features or the Constitution. (5190-EJ

1 Jl7. Ir an amendment transgresses its limits and impairs or alters C

the basic structure or essential features or the Constitution then the Court

has power to undo that amendment. [519FJ

1.08. No principle or justl<e, either economic, political or social is

violated

by the Twenty-sixth Amendment.

Political justi<e relates to the

principle or rights

or the people, i.e.,

right to universal suffrage, right to D

democratic form or Government and right to participation in political

affairs. Economic justi<e Is enshrined in Article 39 or the Constitution.

None

or these

rights are abridged or modified by this Amendment. (523CJ

1Jl9. There Is no question or change of identity on account or the E

Twenty-sixth Amendment. The removal or Articles 291 and 362 has not

made any change In the personality or the Constitution either In its scheme

not in

its basic features nor In its basic form nor In its character. The

question or identity will

arise only when there is a change in the

form,

character and content or the Constitution. [527GJ

1.10. A moral obligation cannot be converted Into a legal obligation.

Courts are seldom con<erned with the morality which is the con<em or the

law makers. [S27D-E]

F

1.11. In a country like ours with so 111any disruptive forces or

regionalism, communaliSm and llnguism, It is necessary to emphasise and G

re-emphasise that the unity and Integrity or India can be preserved only

by a

spirit or brotherhood.

India has one common citlzensllip 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 or princely H

486 SUPREME COURT REPORTS 11993) 1 S.C.R.

A privileges. Abolition or privy purses is not violative or Article 14. [528F)

~

1.12. The Court cannot make surmises on •1rs• and 'buts' and arrive

to any conclusion that Articles 291 and 362 should have kept in tact as

specinl provisions made ror minorities in the Constitution. It is but a step

B

in the historical evolution to achieve raternity and unity or the nation

transcending all the regional, linguistic, religious and other diversities

which are the bed-rock on which the constitutional rabrlc bas been raised.

The distinction between the erstwhile Rulers and the citizenary or India -t

bas to be put an end to so as to have a common brotherhood. [529E-F)

c

Nawab Usmanali Khan v. Sagarmal (1965) 3 SCR 201; H.H.

Maharajadliiraja 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 Sripadagalavaru v. State of Kera/a

and Another, (1973) 4 SCC 225; S/1ankari Prasad v. Union of India, (1952)

D

SCR 89; Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933 at 966; Golak --;

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 Bhim Singhji v. Union of India and Others, (1981) 1 SCC 166 at

212; Madhav Rao v. Union, (1971) 3 SCR 9 at 74 and 83; Indira Nehru

E

Gandhi v. Raj Narain, (1975) Suppl. SCC 1; Sanjeev Coke Manufacturing

Company v. Bharat Cooking Coal Ltd., (1983) 1 SCC 147, Varinder Singh

& Ors. v. State of U.P., (1955) SCR 415 at 435; Maneka Gandhi v. Union

of India, (1971) 2 SCR 621; R.D. Shetty v. lntemationa/ Airp011 Authority

of India, (1979) 3 SCC 489; Kasturi Lal Lakshmi Reddy v. State of Uttar

F

Pradesh, (1986) 4 SCC 704; E.P. Royappa v. State of Tamil Nadu, (1974)

2 SCR 348; Krishna Kumar v. Union of India, (1990) 4 SCC 207; Md. Usman

& Ors. v. State of Andhara Pradesh and Ors., (1971) Suppl. SCR 549; Ramesh

.>

Prasad Singh v. State of Bihar & Ors., (1978) I SCR 787, rererred to.

Report of the Joint Select Committee on Indian Constitutional Reforms

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. Krlsbanamacbary (appointed

)....

on 22nd October, 1948). Report of the Rau Committee chaired by Sir

B.N. Rau (appointed in November, 1948); Dias: Jurisprudence, Firth

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. (Concuning)

1.01. -0ne or the tests or identifying the basic feature is, whether the

identity 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)

1.84. 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 questioa 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 lo 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

uoameodabllity of Article 291 or

362 does not have any foundation. The

theory of political justice is also not tenable since p01itlcal justice means

the principle

of political equality such as adult suffrage, democratic form

of

Government, etc. [5390.E] F

1.116. If the 26th amendment aims to establish an egalitarian society

which ls in consonance with the glorious preamble, how could this

provision

he 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 apiost the President under Article 366(22), this Statement

cannot tantamount

to

basic structure. Nor would it mean the same as the

basic structure. [S59G-H]

1.87. 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 bas not changed. India

could still retain its identity and it can hardly be said that the personality

bas changed. [560A)

UIS. The repudiation of the guarantees might result in the nullifica·

B lion of a just quid pro quo. But, if it is the will or the people to establish an

egalitarian society that will be in harmony with the changing or times. It

cannot

be denied that

law cannot remain static for all times lo come. [560C)

1.09 Unity and integrity of India would constitute the basic structure

C as laid down in Kesavananda's' case but it is loo far fetched aclaim lo state

that the guai:aotees 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-F)

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)

Virendra Singh and Others v. State of Uttar 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

Sripadagalavani v. State of Kera/a, [1973) Supp. SCR 1; Waman Rao and Jae

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 Nehni Gandhi v. Raj Narain, [1975} Sopp. SCC 1 al 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, De/Iii, [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 Bihar& Ors., (1978) 1SCR787 al 793; Nagpur Improvement Tnist

H & Another v. Vitl1a/ Rao & Ors., (1973) 3 SCR 39; Usman Ali Khan v. Sagar

RAGHUNATII 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. Tetritory of Delhi & Ors., (1981) 1 SCC 608 at 617,

referred to.

"The Framing of India's Constitution' : By B. Shiva Rao at page 520;

Robert S. Peck: 'The Bill of Rights & the Politics of Interpretation", at page B

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, refen"ed to.

ORIGINAL JURISDICTION : Writ Petition (Civil) Nos. 351172 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.

Subhas~ P. Parmeshwaran, C.V.S.

Rao, R.F. Nariman, M.P. Vined, R. Nagendra Naidu, N.N. Bhatt, C.N.

Sreekumar, Pich~ D. Goburdhan, Santokh Singh, Ms. M. Karanjawaia,

Anip Sacbtbey 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 ques-

tion

the constitutional validity of the

Constitution (Twenty-sixth Amend­

ment) Act of 1971 inter-alio, on the ground that it violates the basic F

structure and ess.ential features of the Constitution of India and is, there­

fore, outside the scope and ambit of constituent powers of the Parliament

to amend the Constitution as provided under Article 368 of the Constitu­

tion. In addition, certain directions or suitable orders are sought for

declaring that the petitioner continue to be the Rulers or the 'Successor

Rulers', as the case may be and directing the respondent · Union of India G

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 lnterlocuiatory 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 :

The petitioner, Shri Raghunathrao Raja was the Co-Ruler of Indian

State of Kurundwad Jr. which was prior to 15th August, 1947 a sovereign

B State in treaty relationship with, and under the suze~ainty of the British

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 independei;tt. 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 Jaws for the State and declared bis intent

that the Governor General

of India, the dominion Legislature, the Federal

E Court and any other Dominion authority established for the purposes of

the Dominion shall, subject to the terms of the instrument, exercise in relation to the Kurundwad State such functions as may be vested in them

by the Government

of India Act, 1935 as in force in the Dominion of India

on the 15th

August, 1947. According to the petitioner, clause 7 of the

F

Instrument provided that nothing therein shall be deemed to commit the

Ruler

in anyway to acceptance of any future Constitution of India or to

fetter

his discretion to enter into agreements with the Government of India

under ;my 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

RAGHUNAlH v. U.O.L [PANDIAN, J.) 491

purse as specified in the Merger Agreement (as amended by an order of A

Government of India in 1956) free of taxes, besides reserving his personal

rigbis, 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 wi!h .the duty to frame

Constitution for the United States within

the

framework 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

of India. It was decided in consultation with the Government D

of the ·United States that the Constitution of India as framed by the

Constituent Assembly of India should itself contain all the necessary

provisions governing the constitutional structure of the United States as

well as the provisions for the guarantee contained in the covenants and the

Merger Agreements. In pursuance of this decision the necessary provisions

including part VII providing for the Government, legislature, judiciary, etc.

E

of the

United States as well as certain separate articles governing other

matters,

for example, the privy purse and privileges of Rulers bringing them

within the framework of the covenants were included in the Constitution

F

of India. Accordingly on 13th

October, 1949 the Constituent Assembly of

India adopted inter-a/ia 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 Rajpramukbs 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

492 SUPREME COURT REPORTS (1993] l S.C.R.

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

of India

in relation to their

States. After the commencement of the Con-

stitution 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 tlte 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 epcted a new Act-namely, the _,

Constitution (Twenty-Fourth Amendment) Act of 1971, the Constitution

(Twenty-Fifth Amendment) Act of

1971 and the Constitution (Twenty-Sixth 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)(1),

21 and 31 (1) and (2) of the Constitution.

E

In this Writ Petition, I.A. Nos. 1 to 3 of 1992 have been filed by Smt.

Kamakshidevi Y avaru, Smt. Vishalakshideviyaru and Smt. Inrakshi Devi,

daughters of late Maharaja

of Mysore.

The petitioner in Writ

Petition No. 798/92 is the successor to the late

His Highness Sri Jaya Chamaraja Wadiyar, Ruler of Mysore who had ruled

F

the State of Mysore from 8th September, 1940 onwards until 23rd January,

1950 when the Treaty/Agreement was made between the Government of

India and His Highness the Maharaja of Mysore. This petitioner also

challenges the Constitution (26th Amendment) Act of 1971 on the same

grounds

as in Writ

Petition No. 351/72.

G

Of the various grounds, the most notable is whether the impugned

Act

is beyond the constituent power of

Parliament and whether it has

~ altered, destroyed and damaged the basic structure and essential features

of the Constitution. The object of the impugned Act whereby the Parlia-

ment has omitted Articles 291, 362, inserted Article 363-A and substituted

H a fresh clause (22) for the ori~nal under Article 366 of the Constitution

:~

r

...

RAGHUNAIB v. U.O.I. [PANDIAN, J.] 493

was to terminate the privy purses and privileges of the former Indian A

Rulers and to terminate expressly the recognition already granted to them

under those

two deleted Articles. According to the learned counsel ap­

pearing for the writ petitioners the withdrawal

of the guarantees and

assurances

given under those articles and the abolition of the privy purse,

personal rights, privileges

~d dignities is in violent breach of the power of B

Parliament acting as a constituent body under Article 368 of the Constitu-

tion inasmuch as it not only sought to amend the Constitutiton but also

destroy the basic philosophy, personality, structure and feature

of the

Constitution.

Though it

is not necessary to narrate in detail the

historical events C

leading to the transfer of power and the integration of f.ltdian States

consequent upon the political and constitutional changes, yet a prefatory

note of the past historical background may be stated so as to

have a better

understanding

of the policy step taken for the integration of the

States in

terms of the consolidation

of the country.

D

Though India is geographically one entity yet throughout its long and

past chequered

history it never achieved political homogeneity. There were

about

554

States (subject to a marginal variation as found in various

Reports), out

of which the

States of Hyderabad and Mysore were left

territorially untouched.

Two hundred and sixteen states were merged in the E

adjoining provinces in which they were situated, or to which they were

contiguous. Five were taken over individually as Chief Commissioners'

provinces under the direct control of the Government of India besides

twenty-one

Punjab Hill States .which comprised Himachal Pradesh. Three

hundred and ten were consolidated into

six

Unions, of which Vindhya F

Pradesh was subsequently converted into a Chief Commissioner's province.

Thus, as a result of integration, in the place

of 554 states, fourteen

ad­

ministrative units had emerged. This was a physical or geographical con­

solidation.

The next step

was to fit all ihese 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

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

A slenderness of their resources, the rulers were not in a position to discbargc

even the elementary functions of government. Between these two elllJ'Cmes,

there were several States with administrative systems of varying degrees of

efficiency.

In the past, the comparative Indian area covered by the States was

B 48 per cent of the total area of the Dominion of India, ·the relative

population ratio of the States was 28 per cent of the total population of

the Dominion of India. All the above Indian states formed a separate part

of India before their merger with the rest of India. It.is common knowledge

that the aim of Government of India Act, 1935 was to associate the Indian

C states with the British India as equal partners in loose federation. When

India became independent by the Indian Independence Act of 1947, British

paramountcy in respect of the Indian states lapsed. Therefore, theoretically

though the Rulers became independent in actual fact almost all the Rulers

signed Instruments of Accession in August 1947 surrendering Defence,

D External Affairs and Communications. The Rulers immediately after inde­

pendence became divided into four classes. All the agreements of merger

and

covenants provided for the fixation of the

Rulers' privy purse which

was intended to cover all the expenses of the Rulers and their families

including the expenses of their residences, marriages and other expenses

etc. U oder 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 Fmances Enquiry

Committee, it was urged by most of the States that the liability for paying

privy purses of Rulers should be taken over by the Centre. Having regard

F to the various factors, it was decided that the payments should constitute

a

charge on the Central revenues.

G

The privy purses settlements, were, therefore in the

nature of con­

sideration for the surrender by the Rulers of all the ruling powers and also

for the dissolution of the States as separate units.

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 conoected with the

,

.,.a..

RAGHUNAlH v. U.0.1. [PANDIAN, J.) 495

annexation of the princely states 'the price paid as Priry 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

beary civil lists which they were drawing

before and in large number of cases they could

have continued 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

priry purses and certain privileges on a reasonable

and defined basis. The priry purse settlements are, there­

fore, in the nature of consideration for the surrender by

the Rulers of all their ruling powers and also for the

dissolution of the States as seperate units. We would do

well to remember that the British Government spent enor­

mous amounts in respect of the Mahratta settlements

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 bas 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

by transferring all ruling powers and by agreeing to the

B

c

D

E

F

G

H

4%

A

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

integration of their States. The main part of our obligation

under these agreements,

is to ensure that the guarantees

given

by us in respect of privy purse are fully implemented.

Our failure to do so would be a breach of faith and

seriously prejudice the stabilization of the new order.'

I

B The constitutional provisions of Articles 291 ;md 362 which are now

c

D

E

F

deleted by

Section 2 of the impugned Constitution (Twenty-sixth) Amend­

ment Act as they stood, read

as follows :

'291--Privy purse sums of Rulers

(1) Where under any covenant or agreement entered into

by the Ruler of any Indian

State before the commence­

ment of this Constitution, the payment of any sums, free

of

tax, has been guaranteed or assured by the Government

of India to any Ruler of such

State as privy purse -

(a) such sums shall be charged on, and paid out

of, the

consolidated Fund

of India; and

(b) the sums so paid to any Ruler shall be exempt from

all taxes on income.

(2) Where the territories of any such Indian

State as

aforesaid are comprised within a State specified in Part

A or Part B of the First Schedule, there shall be charged

on, and paid out

of, the Consolidated Fund of that

State

such contribution, if any, in respect of the payments made

by the Government of India under clause ( 1) and for such

period as

may, subject to any agreement entered into in

that behalf under clause (1) of Article

278, be determined

by order of the

President.

G 362-Rights and privileges of R.ulers of India States

H

In the exercise of the power of Parliament or of the

Legislature of a State to make laws or in the exercise of

the executive power of the Union or of a State, due regard

shall

be had to the guarantee or assurance given under

any such covenant or agreement as is referred to in clause

~-

RAGHUNATH v. U.0.1. [PANDIAN, J.]

( 1) of Article 291 with respect to the personal rights,

privileges and dignities of the Ruler of an Indian State.'

497

Clause (22) of Article 366 was amended by Section 4 of the impugned

Act of 1971. We shall reproduce that clause as it stood then and the

substituted

clause (present) consequent upon the amendment.

Unamended Clouse

'"'Ruler' in relation to an Indian State means the Prince,

Chief or other person by whom any such covenant or

agreement

as is referred

.to in clause ( 1) of Article 291

was entered into and who for the time being is recognized

by the President as the Ruler of the State, and includes

any person who for the time being is recognized by the

President as the successor of such Ruler.'

Substituted or amended clause

'Ruler' means the Prince, Chief or other person who, al

any time before the commencement of the Constitution

(Twenty-sixth Amendment) Act, 1971 was recognized by

the President as the Ruler of an Indian State or any person

who, at any time before such commencement, was recog­

nized by the President as the successor of such Ruler.'

In this connection, the new Article 363-A which has been inserted by

section 3 of the impugned Amendment Act which is also relevant for our

purpose may be reproduced :

363-A Recognition granted to Rulers of Indian States to

cease and privy purses to be abolished -Notwithstanding

anything in this Constitution or in any law for the time

being in force-

(a) the Prince, Chief or otheJ person who, at any time

before the commencement or the Constitution (Twenty­

sixth Amendment) Act, 1971 was recognized by the Presi­

dent as the Ruler of any Indian State or any persons who, ,

at any time before such commencement, was recognized

by the President as the successor of such ruler shall, on

A

B

c

D

E

F

G

H

A

B

c

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

and from such commencement, cease to be recognized as

such Ruler or the Successor of such Ruler.

(b) on and from the commencement of the Constitution

(Twenty-sixth Amendment) Act,

1971 privy purse is

abolished and all rights, liabilities and obligations in

respect of privy purse are extinguished and accordingly

the Rulers, or as the case may be, the successor of such

Ruler, referred to in clause (a) or any other person shall

not be paid any sum as privy purse.

The

submissions advanced by Mr. Soli J. Sorabjee the learned senior

counsel appearing on behalf of the writ petitioner in Writ

Petition No. 351

of 1972 are thus:

Articles 291, 362 and 366(22) of the Constitution were integral part

D of the constitutional scheme and formed the important basic structure since _,

the underlying purpose of these Articles was to facilitate stabilization of

the

new order and ensure organic unity of India. These Articles guaranteed

pledges to the Rulers based on elementary principles of justice and in

order to preserve the sanctity of solemn agreements. It was only by the

incorporation of these Articles that the unity of India was achieved by

E getting all the Rulers within the fold of the Constitution, and that the

deletion of these Articles

has damaged and demolished the very basic

structure of the Constitution.

The covenants entered into were in the

nature of contracts

which had been guaranteed constitutionally and af­

firmed by

malting the privy purse an expenditure charged under the

F Consolidated Fund of India and the use of the expressions 'guaranteed or

assured

by the Government of the Dominion of India to any Ruler' as

embodied in Article 291 and the expression

'guarUlleed and. ISSUlance

Pen under such covenants or agreements as is referred to in clause (1) of

Article 291 ............. ' as comprised in Article 362 were a pcr:inanent

feature of the Constitution reflecting the intention of the foundiiig fathers

G of the Constitution and as such these two Articles should have been kept

intact. According to the learned counse~ the deletio'1 of these Articles

amounted to a gr0ss breach of the principle of political justice enshrined

in the preamble by' de~ or talcing away from the princes the privy

purses which were given to them as consideration for surrendering all their

H sovereign rights and conltt"buting to the unity and integrity of the country

RAGHUNATH v. U.0.1. [PANDIAN, J.) 499

and that the deletion of these Articles by the impugned Amendment Act A

~ is arbitra.ry, unreasoable and violative of Article 14 of the Constitution.

Further

it has been urged that the Rulers acceded to the Dominion of India

and executed Instruments of Accession and Covenants in consideration of

the pledges and promises enshrined

in Articles 291 and 362 and that the

impugned Amendment Act

is beyond and outside the scope and ambit of

B

the constitutional power of the Parliament to amend the Constitution as

provided under Article 368 of the Constitution.

-.

Mr. Soli J. Sorabjee, the learned senior counsel in his additional

written submissions has further urged that without the co-operation of the

Rulers,

not only the territory of India, its population, the composition of c

the State Legislatures, the Lok Sabha and Rajya Sabha but also the

Constitution that

was adopted on 26th November, 1949 would have been

basically different and that India

i.e. Bharat would have been fundamen-

tally different from the Bharat that came into being.

... D

In Writ Petition No. 351 of 1972 in Ground Nos. 38, 39 and 40, it is

contended that the Constitution (Twenty-sixth Amendment) Act is uncon-

stitutional, null, void and violative of Articles 14, 19(l)(g), 21, 31 (1) and

(2) of the Constitution.

·:A

Mr. Harish Salve, the learned senior counsel coatendcd dm Articles E

291 and 362 when incorporated were intended to gnat ,_,,.;.ion to die

solemn promises on the strength of which the former Rulers llgl'CCd to

merge with the Indian Dominion and the guarantee of pmy purses and

certain privileges was as a just quid pro quo for surrendering their

sovereignty and

dissolving their States. It has been stated that the constitu- F

tional guarantees and assurances promising continuance of privy purse as -~ enshrined in the Agreements and Coevnants were 'an integral part of the

Constitutional Schemes' and 'an important part of the Constitutional

structure' and they were to be

fully honoured and not cast away on a false

morass of public opinion or buried under acts of

States, but the impugned

G

Act, a {tMX, bu abolished and destroyed those constitutional provisions

of Artidcs 291 and 362 affirming the guarantees and assurances given to

..,:.t-the Rulers under those agreements. To highlight the signifiruce of those

~ whereby the Rulers were pcr;suaded to sign the instruments,

the statement of Shri VJ'. Menon who was clOSC:lY connected with the

annexation of the princely states and the .speech of Sardar Vallabhbhai H

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

A Patel made in the Constituent Assembly were cited.

It is further emphasized that Sardar Patel also made it clear that

according to the vision and views of the Constitution makers, the guaran­

tees of Privy Purse, privileges etc., were perfectly in keeping with the

B democratic ethos and principle of the Indian people. Then the learned

counsel stated that the views expressed in the Constituent Assembly were

unanimously accepted and the~e was no dissent and that in fact the closing

remarks in the debate of Dr. B. Pattabhai Sitaramayya were not only ....

remarkably confirmatory of the permanence and indefeasibility of the

aforesaid guarantees and assurances but also went a long way in determin-

e ing that the said guarantees and assurances have come to stay as an integral

and

untouchable part of the basic structure of the Constitution.

Fmally, it was said that there can be no basic structure of a

Constitu­

tion divorced from the historical evolution of the precepts and principles

D on which the Constitution is founded. Any effort to determine the basic -,

structure of the Constitution without keeping a finger on the historical

pulse of the Constitution may well lead to substantial injustice. According

to him, if the historical approach to the test of basic structure is kept in

view, the guarantees and assurances of the privy purses, privileges, etc.

granted by the Constitution-makers by incorporating Articles 291, 362 and

E

366 (22) in the Constitution framed by them would, without any doubt or

~

dispute, emerge in their own rights 'as basic features' of the Constitution

which cannot be abrogated or annihilated by any Constitutional amend-

ment. What be finally concluded is that the guarantees and assurances of

the privy purses, privileges etc. contained in the above three Articles were,

F in fact, the reflections of the aforesaid virtues of the Constitution makers

which are the very virtues which characterized the personality of the Indian

Constitution and that the Objects and Reasons of the impugned Amend-~.

ment clearly establish the mala /ides of the Amendment.

Mr. AK. Ganguly, the learned senior counsel appearing in IA No.

G 3 of 1992 in W.P. No. 351 of 1972 pointed out that after the Articles 291,

362 and 366 (22) were adopted by the Constituent Assembly of India on

12th, 13th, 14th and 16th October of 1949, Mabaraja of M,sore then issued )..,..

a proclamation on 25th November 1949 to the effect that the Constituent

Assembly of M,sore and Maharaja adopted the Constitution of India which

H would be as passed and adopted by the Constituent Assembly of India. On

RAGHUNATII v. U.0.1. [PANDIAN, J.) 501

the following day, namely, 26th November, 1949, the Constituent Assembly A

"7' adopted the Constitution of India. Thereafter, on 23rd January, 1950,

Mabaraja of Mysore executed the Merger Agreement with the Government

. of India. The learned counsel after giving a brief history of the Merger of

the princely States, slated that the fact that the framers of the Constitution

adroitly chose the words "guarantee or assured' unequivocally conveys the B

intention of the framers of the Constitution to continue the guarantee as

per the covenants in their plain meaning. Learned counsel submitted that

..... the fact that the expression "guaranteed' occurring both in Article 32 and

Article

291 besides in Article 362 ('guarantee') clearly demonstrates the

mind of the Constitution makers that they intended the said provisions of

Articles

291 and 362 to be the basic and essential structure of the Constitu-C

tion. According to him, to preserve the sanctity of these rights, the framers

of the Constitution chose to avoid voting in

Parliament on the amount to

be paid

as privy purses and keeping that object in their view, they framed

Articles 291(1) reading

'Such sums shall be charged on and paid out of the

~-Consolidated Fund of India and that the said payments would be exempted D

from all taxes on income". When such was the sanctity attached to this

guarantee, the impugned Amendment completely throwing away those

guarantees and assurances to the wind

is palpably arbitrary and destructive

of the equality clause which is admittedly a basic feature of the

Constitu­

tion.

Mr.

R.F .. Nariman, the learned counsel appearing in IA. No. 1 of

1992 in Writ

Petition No. 351 of 1972 adopted the arguments of the other

counsel and contended that the erstwhile Rulers

of the princely states

formed a class apart in that there

is a real and substantial distinction

between them and the citizenary of India. In

this context, he referred to

Section 87B of the Civil Procedure Code, 1908 which was introduced by

E

F

~way of Amendment after the Constitution came into force in the year 1951

and in order to protect the erstwhile Rulers from frivolous suits filed

against them in free India after the Constitution· came into force. This,

according to learned counse~ was legislative recognition in addition to the

constitutional guarantee contained in Articles

291 and 362 of the fact that G

the erstwhile Princes formed a class apart.

When such was the position,

· according to the learned counse~ the impygoed Amendment which violates

-*the basic structure of the Constjtution is unconstitutional. He cited certain

decisions in support

of his arguments that the Amendment Act is violative

of the essential features contained in Articles i4 and 19(1)(f). H

502 SUPREME COURT REPORTS (19'J3] 1 S.C.R.

A Mr. D.D. Thakur, the learned senior counsel appearing for the

petitioner

in Writ Petition No.

798192 besides adopting the argument

advanced

in Writ Petition No.

351172 added that these two Articles were

not at

all

amendable on the principle of prohibition against impairment of

the contract obligations, a principle recognised in Section 10, Article 1 of

B the Constitution of the United States of America. The same principle is

incorporated in the Indian Constitution in the shape of Articles 362 and

291. According to the learned counsel, the impugned Amendment Act is

an ugly epitome of immorality perpetrated by the Indian Parliament, that,

too,

in the exercise of its constituent powers and the said Amendment Act

constitutes an unholy assault on the spirit which

is impermissible and that

C the principle of justice, fairness and reasonableness are beyond the

amend­

ing powers of the Parliament._ He further stated that the equality clause as

interpreted

by this Court in various decisions is the most important and

indispensable feature of the Constitution and destruction thereof

will

amount to changing the basic structure of the Constitution, and that the

D authority of the Parliament to amend the Constitution under Article 368

could be exercised

only if the Amendment in the Constitution is justifiable

and necessitated because

of the socio-economic reasons broadly referred

to in the directive principles

of the

State Policy and that any Amendment

unrelated to any genuine compulsion amounts to an abuse of the power

and

is therefore a fraud on the exercise of power

itself.

E

The learned Attorney General of India with regard to the above

pre-Constitutional agreements stated that the history of the developments

leading to the merger agreements and the framing of the Constitution

clearly show that it is really the union of the people of the native States

F with

the people of the erstwhile British India and the Instruments of

Accession were only the basic documents but not the

individual agreements

with the Rulers and therefore to attribute the agreements entered into by

Rulers as a sacrifice by the Rulers is unfounded. Secondly, the nature of

the covenants

is not that of a contract because a contract is enforceable at

G

law while these covenants were made non-justiciable by the Constitution

vide. Article

363. According to him, the covenants were political in nature

and that no

legal ingredients as the basis can be read into these agreements

and that the guarantees and assurances embodied in Articles 291 and 362

were guarantees for the payment of privy purses. He has urged that such

a guarantee can always be revoked in public interest pursuant to fulfilling ·

H a policy objective or the directive principles of the Constitution. That being

•

·-

_,.

~

-:+-

RAGHUNATH v. U.0.1. (PANDIAN, J.] 503

so, the theory of sanctity of contract or unamendability of Articles 291 or A

362 did not have any foundation. He continues to state that the theory of

political justice

is also not tenable because political justice means the

principle of political equality such

as adult suffrage, democratic form of

Government etc. In this context, he drew the attention of this Court to a

decision

in Nawab Usmanali Khan v. SagannaJ, (1965] 3 SCR

201 wherein B

Bachawat, J speaking for the Bench has held:

'. . . . . . . .the periodical payment of money by the

Government to a Ruler of a former Indian State as privy

purse on political considerations and under political sane-

tions and not under a right legally enforceable in any

c

municipal court is strictly to a political pension within the

meaning of

S.

60(1)(g) of the Code of Civil Procedure.

The use of the expression 'privy purse' instead of the

expression "pension' is due to historical reasons. The privy

purse satisfies all the essential characteristics of a political

D

pension."

Furhter it has been observed in the above case :

'. . . . . . . .it must be held that the amounts of the privy

purse are not liable to attachment or sale in execution of

E

the respondent's decree.'

Before embarking upon a detailed discussion on the various facets

of the contentions-both factual and legal -

we shall deal with the precursive

point with regard to the pre-constitutional Instrument of Accession, the

Merger Agreement and the covenants which guaranteed the payment of

F

privy purse and the recognition of personal privileges etc. and which

agreements ultimately facilitated the integration of these States with the

Dominion

of India.

In

1947, India obtained independence and became a Dominion by

G

reason of the

Indian· Independence Act of 1947. The suzerainty of the

British Crown over the Indian States lapsed at the same time because of

' Section 7 of that Act. Immediately after, all but few of the Indian States

acceded to the new Dominion by executing Instruments

of Accession. The

Instrument of Accession executed

by the Rulers provided for the accession

of the States to the Dominion

of India on three subjects, namely, (1) H

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

A Defence, (2) External Affairs and (3) Communications, their contents

being defmed in List I

of Schedule VII of the Government of

India Act,

1935. This accession did not imply any fmancial liability on the part of the

acceding States.

This accession of the Indian States to the Dominion of India estab-

B lished a new organic relationship between the States and the Government,

the significance of which

was the foregoing of a constitutional link or

relationship between the

States and the Dominion of India. The accession

of the Indian States to the Dominion of India was the first phase of the

process of fitting them into the constitutional structure of India. The

C second phase involved a process of two-fold integration, the consolidation

of

States into sizeable administrative units, and their democratization.

Though

high walls of political isolation bad been raised and buttressed to

prevent the

infiltration of the urge for freedom and democracy into the

Indian States, with the advent of independence, the popular urge in the

D States for attaining the same measure of freedom as was enjoyed by the

people in the Provinces, gained momentum and unleashed strong move­

ments for the transfer of power from the Rulers to the people. On account

of various factors working against the machinery for self-sufficient and

progressive democratic set-up in the smaller states and the serious threat

to

law and order in those

States, there was an integration of States though

E not in an uniform pattern in all cases. Firstly, it followed the merger of

States in the Provinces geographically contigous to them. Secondly, there

was a conversion

of

States into Centrally administered areas and thirdly

the integration of their territories to create new viable units known

as Union of States.

F

Sardar Vallabhbhai Patel had a long discussion with the Rulers and

took a

very active role in the integration of the

States. As a result of the ~

application of various merger and integration schemes, ( 1) 216 States bad

been merged into Provinces; (2) 61 States had been taken over as Centrally

administered areas; and (3)

275

States bad been integrated in the Union

G of States. Thus, totally 552 States were affected by the integration schemes.

Reference

may be made to (1) the Report of the Joint

Select Com- 1'::~

mittee on Indian Constitutional Reforms (1933-34), (2) the Report of the

Expert Committee headed

by Nalini Ranjan

Sarkar, published in Decem-

H ber 1947, (3) The Indian States' Finances Enquiry Committee chaired by

RAGHUNAlH v. U.O.J. [PANDIAN, J.) 505

Sir V.T. Krishnamachari appointed on 22nd October, 1948 the recoMmen- A

"'""'

dations of which, on further discussions with the representatives of the

States and Union of States led to the conclusion that the responsibility for

payment

of the privy purses fixed under various convenants and agreements

should be taken over

by the Government and ( 4) the Report of the Rau

Committee appointed in November

1948 under the chairmanship of Sir

B

B.N. Rau. •

Reverting to the cases on hand, Shri Raghunathrao Ganpatrao, the

petitioner in Writ Petition No. 351 of 1972 executed a merger agreement

as per the form of merger on 19th February 1948 and handed over the

administration

of the State on 8th March, 1948. The petitioner was entitled c

to receive annually from the revenues of the States his privy purse of Rs. 49,720 as specified in the Merger Agreement (as amended by an Order of

Government of India in 1956) free of taxes besides

his personal privileges,

rights and the Dominion Government guaranteed the succession according

·-

to law and custom of the Gadi of the State and the Raja's personal rights

D

privileges and dignities.

Shri Jaya Chamaraja Wadiyar, father of the petitioner (Sri Srikanta

Datta Narasimharaja Wadiyar) in Writ Petition No. 798 of 1992 executed

an Instrument of Accession and entered into an Merger Agreement/freaty

on 23rd January, 1950. Under the merger Agreement, the Maharaja of

E

-,.t Mysore was entitled to receive annually for his privy purse the sum of Rs.

26,00,000 (Rupees twenty-six lakhs) free of all taxes w.e.f. 1st April 1950.

Article (1) of the said Agreement contained a proviso that the sum of Rs.

26,00,000 was payable only to the then Maharaja of Mysore for his life time

and not to his successor for whom a provision would be made subsequently

F

by the Government of India. Besides, the then Maharaja was entitled to

-~

the full ownership, use and enjoyment of all his private properties (as

distinct from State properties) belonging to

him on the date of the agree-

ment as specified under clause (1) of Article (2) of the Agreement.

We are not concerned about the particulars of the agreements

ex-

G

ecuted by other Rulers of various States.

-~

While, it was so, in 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 Constitu-

tion. Accordingly, Rulers continued to enjoy the said benefits upto

1970. H

506 SUPREME COURT REPORT$ {1993] 1 S.C.R.

A On 14th May, 1970, the Constit11tion (Twenty-fourth Amendment)

Bill, 1970 for abolition of the above said privy purse, privileges etc. con­

ferred 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 caluses and a short statement of Objects and Reasons. The state-

B ments reads thus :

'The concept of rulership, with Privy Purses and Special

Privileges unrelated to any current functions and social

purposes,

is incompatible with an egalitarian social order.

Government have, therefore, decided to terminate the

C

Privy Purses and Privileges of the Rulers of former Indian

States. Hence this Bill."

On 2nd September, 1979, the Bill was voted upon in the Lok Sabha.

But on 5th September, 1970, the Rajya Sabha rejected the same since the

Bill failed in the Rajya Sabha to reach the requisite majority of not less

D than two third members present as required by Article 368 and voting.

Close on the heels of the said rejection, the President of India purporting

to exercise

his powers under clause (22) of Article 366 of the Constitution,

signed an

Order withdrawing recognition of all the Rulers in the country

en-masse. A communication to this effect

was sent to all the Rulers in India

E who have been previously recognised as Rulers.

This Presidential

Order de-recognising the Rulers was questioned in

H.H. Maharajdhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v.

Union of India, [1971] 3 SCR 9 by filing Writ Petitions under Articles 32

of the Constitution challenging it as unconstitutional, ultra vires and void.

F An eleven-Judges Bench of this Court by its Judgment dated 15th Decem­

ber 1970 struck down the Presidential Order being illegal, ultra vires and

inoperative on 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 their pre-existing

G rights and privileges including right to privy purses as if the impugned

orders therein had not been passed. Here,

it may be noted that Mitter and

Ray, JJ. gave their dissenting judgment.

Thereupon, the payment of privy purses to the Rulers was restored.

Subsequently, Parliament enacted a new Act entitled the Constitution

H (Twenty-Founh Amendment) Act, 1971 on receiving the ratification by the

->--

RAGHUNATII v. U.0.1. [PANDIAN, J.]

Legislature of H°'States. It received the assent of the President on 5th A

November, 1971. By this amendment Act, clause (4) reading 'Nothing in

this article shall apply to any amendment of this Constitution made under

Article

368" was inserted in Article 13 and Article 368 was re-numbered

as clause (2).

The marginal heading to that article was substituted namely

"Power of Parliament to amend the Constitution and procedure therefor" B

in the place of 'Procedure for amendment of the Constitution'. Before

re-numbered clause (2), clause (1) was inserted. In.the re-numbered clause

(2) for

the words 'it shall be presented to the

President for his assent upon

such assent being to the Bill', the words "it shall be presented to the

President who

shall give his assent to the Bill and thereupon' was

sub­

stituted. After the re-numbered clause (2), clause (3) was inserted, namely C

"Nothing in article 13 shall apply to any amendment under this article.'

It may be recalled that Article 368 was firstly amended by Section 29

of the Constitution (Seventh Amendment) Act, 1956 by omitting the words

and letters 'specified in Part A and B of the First Schedule' and thereafter D

by Section 3 of the Constitution (Twenty-Fourth Amendment) Act, 1971.

Again, by Section 55 of the Constitution (Forty-second Amendment) Act,

1956, clauses (4)

and (5) were inserted. But this amendment bas been held

unconstitutional

in Minerva Mills v.

Union of India, [1980] 3 SCC 625,

holding that ,Sections 55 of the Forty-second" Amendment Act inserting

clauses (4) and (5) to Article 368 had transgressed the limits of the E

amending power of the Parliament which power in Kesavananda Bharati

was held not to include the power of damaging the basic features of the

Constitution or destroying its basic structure.

The Constitution (Twenty-fifth Amendment) Act, 1971 by substitut-F

iog a new clause to clause (2) of Article 31 and inserting clause (2B) after

clause (2A) came into force. By the same Amendment Act, Article 31C

was inserted after Article 31B entitled 'Saving of laws giving effect to

certain directive principles'. It

is significant to note that Article 31 was

omitted

by the Constitution (Fourty-fourth Amendment) Act, 1978 w.e.f.

20th June, 1979. G

The impugned Constitution (Twenty-sixth) Amendment, 1971 was

passed

by the

Parliament and it received the assent of the President on

28th December

1971. By this Act, Articles 29i, 362 were omitted and

Article 363-A

was inserted under the

title "Recognition granted to Rulers H

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

A of India States to cease and privy purses to be 'a'bolished". By the same

Amendment

Act, an amended new clause was substituted to the then

existing clause (22). We have already reproduced Articles 291, 362 and the

past and

pwsent clause (22) of Article 366.

After the imp°S'led Twenty-sixth Amendment was brought into force

B w.e.f. 28th December, 1971, the present writ Petition No. 351 of 1972 was

filed on 24th August, 1972 for declarations that the Twenty-fourth, Twen­

ty-fifth and Twenty-sixth Amendment Acts of 1971 are unconstitutional,

invalid, ultra vires, null and void and that the petitioner continues to be

entitled to

the privy purse and to personal rights, privileges as a Ruler and

C for a Writ or order directing the respondent to continue to pay privy purse

to the petitioner. Another Writ

Petition No. 352 of 1972'1Vas filed by H.H.

Nawab Mohammed Iftikhar Ali Khan of Malekotla seeking same relief as

in Writ Petition No. 351 of 1972.

It may be noted when Writ Petition Nos. 351 and 352 challenging the

D Twenty-fourth, Twenty-fifth and Twenty-sixth Amendment Acts were filed _,

E

F

in this Court, Writ

Petition No. 135--of 1970 entitled His Holiness

Kesavananda Bharati Sripadagalvaru v. State of Kera/a and Another was

pending before this Court.

When both these Writ Petitions i.e., WP. No. 351 and 352 of 1972

were listed together, on 28th August, 1m 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 lm to file counter affidavit to

the writ petitions. Notice of the writ petitions shall issue

to the Advocates-General of all States. All the Writ Peti­

tions to be heard on the 23rd October,1972. Written

G '-· guments dispensed with."

A thirteen-Judges bench of this court in Kesavananda Bharati v. State

of Kera/a, (1973) 4 sec 225 heard some writ petitions along with these two )::-

writ petitions and gave its conslusions thus :

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

RAGHUNA'JH v. U.0.1. [PANDIAN, J.)

follows:

1. Go/ale Nalh's case is over-ruled;

2. Art. 368 do!:s not enable Parliament alter the basic

structure of framework of the Constittition;

3. The Constitution (Twenty-fourth Amendment) Act,

1971 is valid; '

4. Section 2(a) and (b) of the Constitution (Twenty-fifth

Amendment) Act, 1971 is valid;

5. The first part of Section 3 of the Constitution (Twen­

ty-fifth Amendment) Act, 1971 is valid. The second part,

namely, "and no law containing a declaration that it is for

giving effect to such policy shall be called in question in

any Court on the ground that it does not give effect to

such policy" is invalid.

6. The Constitution (Twenty-ninth Amendment) Act,

1971 is valid.

The Constitution Bench will determine the validity of the

Constitution

(Twenty-sixth Amendment) Act, 1971 in

ac­

cordance with law.

The cases are remitted to the Constitution Bench for

disposal in accordance with L.w. There will be no order

509

A

8

c

D

E

as to costs incurred up to this stage." F

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 Twenty-sixth Amendment Act in accordance with the law

laid down in Kesavananda Bharati.

Since the constitutional validity of the same Twenty-sixth Amend­

ment Act is involved in Writ Petition No. 798 of 1992, it is also before this

Bench along with Writ Petition No. 351 of 1972.

G

As regards the inbuilt separate mechanism for amending the Con­

stitution, Dr. Amedkar said, "One can, therefore, safely say that the Indian H

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

A federation will not suffer from the faults of rigidity or legalism. Its distin­

guishing feature is that it is a flexible federation." Dr. Wheare in his modem

Constitution

has commended that it 'strikes a good balance by protecting

the rights of the

State while leaving remainder of the Constitution easy to

amend.' Our constitution is amendable one. In fact, till now Seventy-two

B amendments have been brought about, the first of which being in 1951 i.e.

within 15 months of the working of the Constitution.

c

The first amendment was challenged in Shankari Prasad v. Union of

India, (1952] SCR 89 but the Supreme Court unanimously upheld the

validity of the Amendment.

A brief note as regards the circumstances which necessitated the

Twenty-fourth Amendment being brought may be recapitulated.

The Constitution Bench of this Court in Sajjan Singh v. State of

Rajasthan, (1965) 1 SCR 933 wherein the constitutional validity of the

D Constitution (Seventeenth Amendment) Act, 1964 was challenged, -if

reiterated the views expressed in Shankari Prasad by a mojority of three

Judges

although two Judges gave their separate dissenting judgments. One

of the dissenting Judges, Hidayatullah, J stated that the 'Constitution gives

so many assurances in

Part III that it would be difficult to think that they

E were the playthings of a· special majority.' The other dissenting Judge,

Mudholker, J. took the view that the word 'law' in Article 13 included a

constitutional

amendment under Article 368 and that, therefore, the

Fun­

damental Rights part was unalterable. In his view, Article 13 qualified the

amending power found in Article 368 making the Fundamental Rights part

of India's Constitution unamendable.

F

The concerns of the two dissenting learned Judges came before an

eleven-Judges Bench of this Court in Golak Nath v. State of Punjab, AIR

1967 SC 1643 involving another round of attack on three Amendment Acts,

namely, the first, fourth and seventeenth Amendment Acts. This Court by

G a ratio of six to five held that the Parliament had no power 'to amend any

of the provisions of Part III . . . . . . . so as to take away or abridge the

fundamental rights enshrined in that Part. The decision in Golak Nath was

rendered in 1967, but one of the amendments it would invalidate dated -)::'-

from 1951, another from 1955 and another from 1964. Therefore, this Court

in order to avoid any catastrophe that would have ensued in the social and

H economic relations, had the Court ruled that the amendments were void

-

RAGHUNATii v. U.0.1. (PANDIAN, J.) 511

ab

initio, relied on American cases and adopted the doctrine of prospective A

overruling which was construed to enable the Court to reverse its prior

decisions, to continue the validity of the three amendments in issue, and to

declare that after judgment the Indian Parliament would have no power to

amend or abridge any of the Fundamental Rights. Therefore, intending to

override the ruling in Go11lk Nath's case, the (Twenty-fourth Amendment) B

Act, 1971 was brought, as reflected from the Objects and Reasons of the

Twenty-fourth Amendment, which read thus :

Objects and Reasons

In the Go/ak Nath case, (1967] 2 SCR 762, the Supreme

Court reversed,

by a narrow majority, its own earlier

decisions upholding the power

of Parliament to amend all

parts

of the Constitution including

Part lll relating to

fundamental rights. The result

of the judgment was that

Parliament was considered to have no power to take

away

or curtain any of the fundamental rights even if became

necessary to do so

for the attainment of the objectives set

out in the Preamble to the Constitution. The Act, there­

fore, amends the Constitution to provide expressly the

Parliament power to amend any part of the Constitution.'

Thereafter, the Twenty-fifth Amendment Act was brought in

1971

which amended the Constitution to surmount the difficulties placed in the

way of giving effect to the Directive Principles of State Policy by the

interpretation of Article

31 of the Constitution in Rustom Cawasjee Cooper

v.

Union of India, (1970) 3 SCR 530. The said Act substituted clause (2)

c

D

E

and inserted clause (2B) to Article 31 and added Article 31C. These F

amendment acts, namely, twenty-fourth and twenty-fifth besides twenty­

ninth Amendment Act and the continuing validity

of the dictum laid down

in

Oo/ak Nath's case, were the subjects for decision in Kesavananda

Bharati. Though Writ Petition No. 351 of 1972 challenging the twenty­

fourth, twenty-fifth and twenty-sixth Amendment Act was also listed along

G

with other writ petitions in Kesavananda Bharati, the constitutional validity

of the twenty-sixth amendment was left over for determination by a Con­

stitution Bench.

We shall now proceed to examine the constitutional validity

of the

ampugned Amendment Act. H

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

A The question whether Article 291 is a prOV1Sion related to the

Covenants and Agreements entered into between the Rulers of the States 'r

and Indian Domination and is that in reality and substance a provision on

the subject-matter of covenants and agreements were considered

by ~yatullah, CJ in his separate concurring judgment in Madhav Rao and

B thef are answered in the following terms :

c

D

E

F

G

H

"The Article when carefully analysed leads to these con­

clusions: The main' and only purpose of the provision is

to charge Privy Purses on the Consolidated.fund of India

and make obligatory their payment free of taxes on in­

come. It narrows the guarantee of the Dominion Govern­

ment from freedom from all taxes to freedom only from

taxes on income. Earlier I had occasion to show that the

Princes had guaranteed to themselves their Privy Purses

free of all taJCes. The Dominion Government had guaran­

teed or assured the same freedom. The Constitution limits

the freedom to taxes on income and creates a charge on

the Consolidated Fund. There were other guarantees

as

in the Merger Agreements of Bilaspur and Bhopal

(quoted earlier) which are ignored

by the Article. The

guarantee of the Dominion Government

is thus continued

in a modified form. The reference to Covenants and

Agree­

ments is casual and subsidiary. The immediate and

dominant purpose

of the provision is to ensure payment

of

Privy Purses, to charge them on the consolidated Fund

and to make them free of taxes on income.'

(emphasis supplied)

Shah, J speaking for the majority with reference to the covenants and

agreements made the following observation :

'After the Constitution the obligation to pay the privy

purse rested upon the U oioo of India, not because it was

inherited from the Dominion of India; but because of the

constitutional mandate under

Art. 291. The source of the

obligation was in

Alt. 291, and not in the covenants and the

agreements.' (emphasis supplied)

......

J.-

-Y-

RAGHUNATH v. U.0.1. [PANDIAN, J.) 513

So far as Article 362 is concerned, it has been held by majority of A

-~ the 1udges that the said Article is plainly a provision relating to covenants

within the meaning of Article

363 and a claim to enforce the rights,

privileges and dignities under the covenants therefore, are barred by the first limb of Article 363 and a claim to enforce the recognition of rights

and privileges under Article 362 are barred under the second limb

of B

Article 363 and that the jurisdiction of the Courts however, is not excluded

where the relief claimed

is founded on a statutory provision enacted to give

effect to personal rights under Article 362.

The important question now that arises for our consideration

is

whether the twenty-sixth amendment Act, which completely omitted Ar- C

tides 291, 362 and inserted a new Article 363A and also substituted a new

clause (22) in place of its original clause

or Article 366, has destroyed,

damaged and altered the basic structure of the Constitution.

The Constitution remains at the apex because it

is the supreme Law.

The question

is what is the power of the Parliament to amend the Con- D

stitution either by abridging or omitting any existing Article or adding any

new Article

or clause or substituting any new clause for its original clause.

To answer this most important question, some supplementary questions

have to be examined, those being as to what

is the parameter or the mode

by which an amendment can be brought and what

are limitations -either E

express or implied -on the amending power which inhers in the Constitu-

tion itself including its Preamble.

Before, we proceed further, let us understand what is meant by an

'amendment'. The word has latin origin 'emendere' -to amend meims to

correct. Walter F. Murply in 'Constitutions, Constitutionalism and F

Democracy' while explaining what 'amendment' means has stated :

"Thus an amendment corrects errors of commission or

omission, modifies the system without fundamentally

changing its nature -that is an amendment operates within G

the theoretical parameters

of the existing Constitution.'

' ~ ':f-. In our Constitution, the expression 'amendment of the Constitution'

is not defined. However, Part XX which contains one Article

viz. Article

368 provide a special procedure for amending certain provisions of the

Constitution under the heading 'Amending of the Constitution'.

H

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

A It is not necessary for us to deal with the differe11t provisious of the

Coustitutio11 and the procedures for amendment as laid down by the ~-

Constitution because te authority of the Parliament in bringing about the

impugned amendment Act

is not under challenge.

After the judgment of

Madhav

Rao Scindia the twenty-sixth amend­

B ment was brought to overcome the effect of the judgment. The objects and

reasous of the twenty-sixth amendment makes the position clear, which

read

thus:

c

D

E

'The concept of rulership, with privy purses and special

privileges unrelated to any current

functious and social

purposes,

was incompatible with an egalitarian social

order. Government, therefore, decided to terminate the

privy purses and privileges of the Ruler of former Indian Stales. It was necessary for this purpose, apart from

amending the relevant provisious of the Constitution to

insert a

new article therein so as to terminate expressly

the recognition already granted

to such Rulers and to

abolish

privy purses and extinguish all rights, liabilities and

obligations

in respect of privy purses. Hence this Act.'

We shall

now deal with the dictum laid down in Kesavananda Bharati

as regards the power vested in the

Parliament and the limitatious -either

express or implied or inherent therefor to amend the Constitution.

In

Kesavananda Bharati, the Supreme Court upheld the validity of

the twenty-fourth Amendment.

Of the 13-Judges, Shela!, Hedge, Grover,

F Jagmohan Reddy and Mukherjea observed that the Twenty-fourth Amend­

ment did not more than clarify in express language that which was implicit

in the unamended Article 368 and it did not and could not add to the J­

power originally conferred thereunder. Ray, J said that the Twenty-fourth

Amendment made explicit what the judgment in

Shankari Prasad and the

G majority judgment in Sajjan Singh and the dissenting judgment in Golak

Nath said, namely, that

Parliament has the constituent power to amend the

Constitution. Sikri, CJ and Ray, Palekar, Khanna, Beg, Dwivedi, JJ who

also held the twenty-fourth Amendment

valid, said that under Article 368

-\:-~

Parliam~nt can now amend every article of the Coustitution.

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

·~

RAGHUNAlH v. U.0.1. [PANDIAN, J.) 515

-~

serted in the article to emphasise the fact that the power exercised under A

that Article is constituent power, not subject to the other provisions of the

Constitution and embraces within itself addition, variation and repeal of

any provision of the Constitution. Mathew, J. put it succinctly stating that

the twenty-fourth Amendment Act did not add anything to the content

of

Article 368 as it stood before the amendment, that it is declaratory in

B

character except as regards the compulsory nature of the assent of the

.""

President to a Bill for amendment. Owivedi, J. has explicitly stated that

except

as regard the assent of the President to the Bill, everything else in

the twenty-fourth Amendment was already there in the unamended Article

368 and that this amendment is really declaratory in nature and removes

doubts cast on the amending power by the majority judgment in

Golak c -

Nath. Sikri, CJ. elaborating the above theme has observed that the Twen-

ty-fourth Amendment, insofar as it transfers power to amend the Constitu-

tion from the residuary entry (Entry en, List I) or from Article 248 of the

~

Constitution to Article 368 is valid; in other words, Article 368 of the

Constitution as now amended by the twenty-fourth Amendment Act deals

D

not only with the procedure for amendment but also confers express power

on Parliament to amend the Constitution. He has also further held that

under Article

368, Parliament can now amend every article of the

Constitu-

tion as long as the result is within the limits laid down.

-,.t.

Thus the Constitutional questions that arose in Kesav011anda

E

Bharati's case were scrupulously and conscientiously examined in detail on

varied and varying topics from different angles such as 'the basic elements

of the Constitutional structure', 'the basic structure of the Constitution',

'the essential and non-essential features of the Constitution', 'tire plenary

power of amendment' etc. etc., and finally

by majority it is laid

down that F

-~

the power of amendment is plenary and it includes within itself the power

to add, alter or repeal the various Articles of the Constitution including

those relating to fundamental rights, but the power to amerd does not

include the power to alter the basic structure or framework of the Con-

stitution so as to change its identity. In fact, there are inherent or implied

G

limitations on the power of amendment under Article 368.

--~

We shall now examine the various arguments made on behalf of the

petitioners and the interveners grouping all those submissions under

separate and distinct topics.

H

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

A One of the points urged in common before us is that the framers of

~

the Constitution in their wisdom had thought it fit to incorporate the words

'guaranteed' or 'assured'

in Article 291 which by their very plain meaning

convey the intention of the framers of the Constitution guaranteeing or

promising that the erstwhile Rulers

of the

States would be en•;ltled to

B

receive their privy purses from the revenues of the Union and that it would

be free from all taxes.

As

we have indicated above there were multiple sequence of events

,.,

'

in the historical evolution which necessitated the Indian Rulers to enter

into various agreements and ultimately to agree

for integration of their

c

States with the Dominion of India by dissolving the separate indentity of

their States and surrendering their sovereignty but reserving only their

rights

for privy purses and privileges. Though India was geographically

regarded

as one entity it was divided in as many as about 554 segments

-big and small.

On 15th August 1947 the British paramountacy lapsed and

--+

D

India attained its independence. The fact that a heavy price was paid to

attain independence and freedom which are sanctified

by the blood of

many martyrs is unquestionable. During the independence struggle there

was popular urge in the Indian

States for attaining the freedom which

unleashed strong movements

for merger and integration of the

States with

the Dominion of India.

E

~-

The agreements entered into by the Rulers of the States with the

Government of India were simple documents relating to the accession and

the integration and the "assurances and guarantees' given under those

documents were only

for the fixation of the privy purses and the recognition

F

of the privileges. The guarantees and the

asslirances given under the

Constitution were independent of those documents. After the advent

of the --'--Constitution, the Rulers enjoyed their right to privy purses, private proper-

ties and privileges only

by the force of the Constitution and in other

respects they were only ordinay citizens of India

.like any other citizen,

of

G

course, this is an accident of history and with the concurrence of the Indian

people in their Constituent Assembly.

Therefore, there cannot be any justification in saying that the guaran--~-

tees and assurances given to the Rulers were sacrosanct and that Articles

291 and 362 reflected only the terms of the agreements and covenants. In

H fact as soon as the Constitution came into force, the Memoranda of

RAGHUNA111 v. U.O.l. [PANDIAN, J.) 517

Agreements executed and ratified by the States and Union of States were A

_,,,,, embodied in formal agreements under the relevant Articles of the Con-

stitution and no obligation flowed from those agreements and covenants

but only from the Constitutional provisions. To

say differently, after the

introduction of Articles

291 and 362 in the Constitution, the agreements

and covenants have no existence at all. The reference to Covenants and

B

Agreements was casual and subsidiary and the source of obligation flowed

only from the Constitution. Therefore, the contention urged on the use of

,.._

the words 'guaranteed' or 'assured' is without any force and absolutely

untenable.

The next vital issue

is whether the impugned Amendment Act has c

-

damaged any basic structure or essential feature of the Constitution.

According to Mr. Soli J. Sorabjee, by the repeal of Articles 291 and

362 which were integral part of the constitutional scheme, the identity of

...

the Constitution has been changed and its character has been fundamen-

D

tally altered. The total repeal of these Articles coupled with an express

repudiation

of the guarantees embodied therein has resulted in nullification

of

"a just quid pro quo" which were the essence of these guarantees. He has

urged that the underlying purpose of doing justice to the Rulers

has been

subverted and breach of faith has been sanctioned. He based the above

arguments on three decisions of this Court, namely,

(I) Waman Rao and E

....:......&

Others v. Union of India and Others, (1980) 3 SCC 587 at 588-80; (2)

-Maharao Sahib Shri Bhim Singhji v. Union of India and Others, (1981) 1

SCC 166 at 212; and (3) Madhav Rao v. Union, (1971) SCR 9 at 74 and 83.

There has been a common recurrent argument that the impugned

F

Amendment Act is beyond the constituent power of the Parliament since

_...._ it has damaged the basic structure and essential features of the Constitu-

ti on.

Mr. D .D. Thakur

in addition to the above has stated that one of the

G

tests to determine whether the provision of the Constitution was intended

to be permanent or could

be deleted or amended is to see whether the

~~

Constitution makers had intended that to be permanent. In support of his

submission, he placed much reliance on the observation of Mudholkar, J

in Sajjan Singh v. State of Rajasthan, [1965) l SCR 933 at page 966 reading

thus: H

518 SUPREME COURT REPORTS (1993) l S.C.R.

A 'Above all, it formulated a solemn and dignified preamble

which appears to be an epitome of the basic features of

the Constitution. Can

it not be said that these are indicia

of the intention of the Constituent Assembly to give a

permanency to the basic feature of the Constitution.'

B

This

observation has been reiterated in a separate judgment of

Hedge and Mukberjea,

JJ in Kesavananda Bharati stating that it was

Mudholkar, J who did foresee the importance of the question whether

there is any implied limitation

on the amending power under Article 368

of the Constitution.

On the basis of the above, he has urged that if the

C intention of the founding fathers regarding the permanence or imper­

manence of a provision of the Constitution

is conclusive for determining

whether a provision

is basic or not, there is no difficulty in gathering the

intention

of the founding fathers from Article 362 itself. He continues to

slate that the fact that 'assurances and guarantees' had been insulated

D against every future constituent inroad or legislative incursion of

Par­

liamentary control is further substantiated from the provisions of Article

291 of the Constitution.

Mr.

A.K. Ganguly has adopted the above arguments and

supple­

mented the same stati'lg that the privileges of the Rulers of the Stale were

E made an integral part of the constitutional scheme and that thereby a class

of citizens are for historical reasons accorded special privileges and that

the recognition of the status, rights and privileges coferred

on the Rulers

were not on temporary basis and as such they are not liable to be varied

or repudiated.

F

Mr. Nariman also emphasises the same.

Before

arlverting to the above contentions, we stale in brief about the

basic principle to be kept in view while amending a Constitution.

G In our democratic system, the Constitution is the supreme law of the

land and all organs of the Government -executive, legislative and judiciary

derive their powers and authority from the Constitution. A distinctive

feature of our Constitution

is its amendability.

The Courts are entrusted with important constitutional respon­

H sibilities of upholding the supremacy of the Constitution. An amendment

RAGHUNATII v. U.0.1. [PANDIAN, J.] 519

of a Constitution become ultra vires if the same contravenes or transgresses A

_...,.,

the limitations put on the amending power because there is no touchstone

outside the Constitution

by which the

validity of the exercise of the said

powers conferred

by it can be tested.

In our Constitution, there are specific provisions for amending the

B

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 c

-

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

D

Constitution unworkable. The Court is not concerned with the wisdom

behind or proprietary of the Constitutional amendment because these are

the matters for those to consider

who are vested with the authority to make

the Constitutional amendment. All that the Court

is concerned with are (1)

whether the procedure prescribed

by Article 368 is strictly complied with?

and

{2) whether the amendment has destroyed or damaged the basic E

-~

structure or the essential features of the Constitution.

If an amendment transgresses its limits and impairs or alters the basic

structure or essential features of the Constitution then the Court has power

to undo that amendment. The doctrine of basic structure

was originated in F

Sajjan

Singh and has been thereafter developed by this Court in a line of

1-

cases, namely (1) Kesavananda Bharati (supra), (2) Indira Gandhi Nehru,

(3) Minerva Mills, (4) Waman Rao and (5) Sanjeev Coke Manufacturing

Company v. Bharat Coaking Coal Ltd., (1983) 1 SCC 147.

Mr. Soli J. Sorabjee in support of his contention that Articles 291

G

and 362 and clause (22) of Article 366 were integral part of the constitu-

-'*

tional scheme which o~erwise would mean the 'essential part of the

constitutional scheme', referred to Webster New International Dictionary,

3rd Edition and Collins Concise ,English Dictionary, and has pointed out

the lexical meaning say, that 'integral' means 'essential' and, therefore,

H

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

A according to him, the total abolition of the provisions of the Constitution

which are its integral parts - otherwise essential parts - has damaged the

essential and basic features of the Constitution. To draw strength for his

submission, he relied upon certain observations made by Shah, J in his

judgment in Madhav Rao observing, 'By the provisions enacted in Articles

366(22), 291 and 362 of the Constitution the previliges of Rulers are made

B an integral part of the constitutional scheme" and 'An order merely "de­

recognising' a Ruler without providing for continuation of the institution

of Rulership

which is

an integral part of the constitutional scheme is,

therefore, plainly illegal.' (emphasis supplied)

C The learned Attorney General has vehemently opposed the above

submission stating that the expression 'integral part of the scheme of the

Constitution'

used in

Madhav Rao are not the same as the basic structure

and that expression has to be read in the context of a challenge to the

Ordinance \Wich sought to render nugatory certain rights guaranteed in

the Constitution, then existing. It is further stated that the attack on the

D Twenty-sixth Amendment based on the principles laid down.in Madhav

Rao is totally misconceived becuase only in order to overcome the effect

of that judgment, the Twenty-sixth Amendment was passed by the Parlia­

ment in . exercise of its constituent powers. According to the Attorney

General,

the observations in the said case were nullified by the Amendment

E and that judgment is no longer good law after the Amendment. To test the

Amendment on the basis of that judgment is impermissible and all the

~ -

F

arguments based upon this case are, therefore, misconceived.

In this content, it becomes necessary to recall certain events which

ultimately gave rise to Madhav Rao's case.

After the commencement of the Constitution, in pursuance of Article

366(22), the Rulers were recognised and they had been enjoying the Privy

purses, privileges, dignities etc. on the basis of the relevant constitutional

provisions. Pursuant to the resolution passed by the All India Congress

G Committee in 1967, the Union of India· introduced the Twenty-fourth

Amendment Bill in 1970 to implement the decision of the All India

Congress Committee favouring removal of privy purses, privileges etc. But

the Bill though passed in the Lok Sabha failed to secure the requisite

majority in the Rajya Sabha and thereby it lapsed. It was only thereafter,

the President of India issued an Order in exercise of the powers vested in

H him under Article 366(22) derecognising the Rulers and stopping the privy

RAGHUNATII v. U.0.1. (PANDIAN, J.] 521

purses, privileges etc. enjoyed by the rulers. This Order passed by the A

_...,., President was the subject-matter of challenge in Madhav Rao. The

Supreme Court struck down the Order of the President as invalid as in the

view of the Court derecognition of the Rulers would not take away right

to privy purses when Articles 291 and 362 were in the Constitution. It was

only in that context, the observations which hal beeen reliec upon by Mr.

Soli J. Sorabjee, were !)lade. The Twenty-s' Amendment itself was

B

passed by Parliament to overcome the effect of this judgment. Now by this

"'

Amendmellt, Articles 291 and 362 are omitted, Article 363A is inserted

and clause

22 of Article 366 is amended. Therefore, one cannot be allowed

to

say that the above said omitted Articles and unamended clause were the

essential part of the constitutional scheme.

So they have to be read only in c

-

the context of a challenge made to the Presidential Order which sought to

render nugatory certain rights guaranteed in the Constitution which were

then

existing. In any event, the constitutional bar of Article 362 denudes

the jurisdiction

of any Court in disputes arising from covenants and treaties

+-

executed by the Rulers. The statement of Objects and Reasons of Twen-

ty-sixth Amendment clearly points out that the retention of the above

D

Articles and continuation of the privileges and privy purses would be

incompatible with the egalitarian society assured in the Constitution and,

therefore, in order to remove the concept of rulership and terminate the

recognition granted to Rulers and abolish the

privy purses, this Amend-

E ment was brought on being felt necessary.

-,A

We are of the opinion that the observations of Shah, J in Madhav

Rao that "the privileges of Rulers are made an integral part of the constitu-

tional scheme" and that

"institution of Rulership

-is an integral part of the

constitutional scheme", must be· read in their proper context. That was a

F

case, where by a Presidential order, the Rulers were deprived of their privy

_,_

purses and other privileges while keeping Articles 291 and 362 intact in the

Constitution. Indeed, the said Presidentjal order was issued after the

Government failed in its attempt to effect an amendment on those lines. It

is in that connection that the learned Judge made the above observations.

G

It is clear that the learned Judge used the words 'integral part' in their

ordinary connotation -not in any lexicographical sense. Ordinarily speak-

~

ing, 'integral' means 'of a whole or necessary to the completeness of a

whole'

and as

'fomiliig a whole" (Concise Oxford Dictionary). Our Con-

stitution is

not a disjointed document. It incorporates a particular socio-

economic and political philosophy. It

is an integral whole. Every provision H

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

A of it is an integral part of it -even the provisions contained in Part XX!

''Temporary, Transitional and Special Provisions". One may ask which '<-

provision which concept or which 'institution' in the Constitution is not an

integral part of the Constitution? He

will not find an answer. To say that

a particular provision or a particular 'institution' or concept

is an int.egral

B

part of the Constitution is not to say that it is an essential feature of the

Constitution. Both are totally distinct and qualitatively different concepts.

The said argument

is really born of an attempt .to read a judgment as a

statute.

One may tend to miss the true meaning of a decision by doing so.

We

may say, the aforesaid observations of

Shah, J constituted the sheet-

anchor of the petitioners' argument relating

to basic structure.

c

In the above premise, it is not permissible to test the Twenty-sixth

Amendment with reference to the observations

made in Madhav Rao.

We shall now dispose of the contention raised in the grounds of the

D

Writ Petition No. 351 of 1972 that the impugned Amendment is violative

of Articles

14,

19(1)(1) and (g), 21, 31 (1) and (2) of the Constitution.

Evidently this contention has been raised

in the year in 1972, that is long

before the Constitution (Forty-fourth Amendment) Act of

1978 was passed

w.e.f. 26th June 1979. Writ Petition No. 798 of 1992 has been filed on

October 15, 1992 in which the ground with reference to Articles 19(1)(1)

E

and 31 are left out. It is to be stated that Articles 19 (1) (I) and 31 are

~ completely omitted by the Forty-fourth Amendment. By the deletion of

these Articles by Forty-fourth Amenement, the status of 'right ta property'

from that

of a fundamental right is reduced to a legal right under Article

300A which reads

"No person shall be deprived of his property save by

F

authority of law". However, in order to allay the fears of the minorities in

respect of that right guranteed in the then Article 31, Article 30 (lA) has

been inserted

by the Forty-fourth Amendment.

The right

to property even as a fundamental

right was not a part of

the basic structure and even assuming that the right to privy purse is a

G

property, it is a right capable of being extinguished by authority of law vide

Article 300A. Needless to emphasise, according to the rules laid down in

Keshavananda Bharati that even the fundmental right can be amended or

altered provided the basic structure of the Constitution in any way is not 4--.

damaged.

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

RAGHUNATH v. U.0.1. [PANDIAN, J.] 523

would be incompatible with the sovereign and republican form of Govern· A

ment. Such a retention will also be incompatible with the egalitarian form

of

our Constitution. That is the opinion of the

Parliament which acted to

repeal the aforesaid provisions

in exercise of its constituent power. The

repudiation of the right to privy purse

privileges, dignities etc. by the

deletion of Articles

291 and 362, insertion of Article 363A and amendment

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) and we do not

find any logic in such a submission. No

principle of justice, either ecc>nomic, political or social is violated by the

Twenty-sixth Amendment. Political justice relates to the principle of rights

B

of the people, i.e. right to universal suffrage, right to democratic form of C

Government and right to participation in political affairs. Economic justice

is enshrined in Article 39 of the Constitution. Social justice is enshrined in

Article

38. Both are in the Directive

Principles of the Constitution. None

of these rights are abridged or modified

by this Amendment. We feel that

this contention need not detain

us any more and, therefore, we shall pass D

on to the next point in debate.

A serious argument has been advanced that the privy purse

was a

just quid pro quo to the Rulers of the Indian

States for surrendering their

sovereignty and rights over their territories and that move for integration

began on a positive promising note but

it soon de-generated into a game E

of manoeuvre presumably as a deceptive plan or action. This argument

based on the ground of breaking of solemn pledges and breach of promise

cannot stand much scrutiny. To say that without voluntary accession, India

i.e. Bharat would be fundamentally different from that Bharat that came

into being prior to the accession

is untenable muchless inconceivable. We F

have already dealt with the necessity of the Rulers to accede for the

integration of

States with the Dominion of India in the earlier -part of this

judgment and, therefore,

it is quite unnecessary to reiterate in this context,

except saying that the integration could have been achieved even otherwise. One should not lose sight of the fact that neither because of their antipathy G

towards the Rulers nor due to any xenophobia, did the Indian Government

entertain the idea of the integration but because of the

will of the people.

It was the people of the

States who were basically instrumental in the

integration of India. It would be apposite to refer to the observation of

Bose,

Jin Varinder singh &

Ors v. State of U.P., (1955] SCR 415 at 435. The

said observation reads as follows : H

A

B

524 SUPREME COIJRT REPORTS [1993] l S.C.R.

'Every vestige of sovereignty was abandoned by the

dominion of India and

by the

States and surrendered to

the peoples

of the land who through their representatives

in the Constituent Assembly hammered out

for themselves

a

new Constitution in which all were citizens in a new

order having but one tie, and owning but one allegiance :

devotion, loyality, fidelity to the Sovereign Democratic

Republic that

is India.'

It is also worthwhile to take note of the historical process of states

integration which

is well

set· out in Chapter 18 under the heading Indian

C States in "The Framing of Constitution - A Study by B. Shiva Rao. A

persual of that chapter indicates that the attitude of the princes towards

joining a united India

was one of resistance, reluctance and high bargain,

and it

was the peoples of the

States who forced them to accede to the new

United India. To say in other words, the States were free but not stable

D because of the stress and strain they underwent both from inside and

outside. Though the process

of integration and democratisation called

as

"unionization" in the words of Sardar Patei, 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

E

F

process of integration. Therefore, it is a misnomer to say that the Rulers

made their.sacrifices for

which they were given

ju•! compensation and

assured permanent payment of privy purses. What was given to the Rulers

was a political pension a• rightly pointed out in Usman Ali's case, on

consideration of their past p!lsition. Hence there

is no question of breaking

of solemn pledges or breach of promises etc.

given to the Rulers. There­

fore, the repudiation of the same cannot

be said to have amounted to any

breach of those guarantees and promises resulting

in alteration of the basic

structure of the Constitution.

Mr. D.D. Thakur has submitted that the Twenty-sixth Amendment

is

an ugly epitome of immorality perpetrated by the Indian

Parliament, that

G too in the exercise of its constituent powers and that the justice, fairness

and reasonableness

is the soul, spirit and the conscience of the Constitution

of India as framed originally and that the impugned Amendment Act

constitutes an unholy assault on that spirit which

is impermissible and

beyond the amending powers of the

Parliament under Article 368 of the

H Constitution. According to him, the equality clause as interp.-eted by this

-

RAGHUNATH v. U.0.1. [PANDIAN, J.] 525

Court in (1) Maneka Gandhi v. Union of India, (1978] 2 SCR 62l, (2) R.D. A

Shetty v. International Airpolt Authority of India, (1979] 3 SCC 489, (3)

Kasturi Lal Lakshmi Reddy v. State of Uttar Pradesh, (1986] 4 SCC 704, (4)

E.P. Royappa v. State of Tamil Nadu, (1974] 2 SCR 348, (5) Indira Gandhi's

case and (6) Minerva Mill's case (supra) is the most important indispen­

sable feature of the Constitution and destructiob thereof will amout !o B

changing the basic structure of the Constitution.

Mr. Harish Salve in addition to the above, urged that the basic

structure test

is to be applied on the touchstone of the Constitution as it

stood while being delivered

at the hands of the Constitution

makers and

that it would be contrary to the very principle

of the basic structure to apply C -any personal notion or ideological predilections while determining the

'personality test' of the original Constitution. Further he states that the

identity

of the Constitution has been lost on account of the impugned

Amendment.

As regards the submission that the amendment is an ugly epitome of D

immorality perpetrated by the

Indian Parliament, it has been seriously

opposed by the learned Attorney General that this argument based on

immorality has only to be stated to be rejected and that it

is an elementary

principle

of jurisprudence that a law cannot be interpreted on the basis of

moral principles. In this connection, reference may be made to the

foUow-E

ing passage in Dias's Jurisprudence, Fifth Edition, at Page 355 and 356, It

reads

thus:

'As a positivist, Prof. Hart excludes morality from the concept of law, for

he says that positivists are concerned to promote

'clarity and honesty in the formulation of the theoretical

and moral issues raised

by the existence of particular laws

which were morally iniquitous but were enacted in proper

form, clear in meaning, and satisfied

aU the acknowledged

criteria of validity of a system. Their

view was that, in

thinking about such laws, both the theorist and the

unfor­

tunate official or private citizen who was called on to apply

or obey them, could only be confused by an invitation to

refuse the title of 'law' or 'valid' to them. They thought

that, to confront these problems, simpler, more candid

resc.urces were available, which would bring into focus far

F

G

H

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

A better, every relevant intellectual and moral c<insideration:

we should say, "This is law; but it is too inquitous to be

applied or obeyed.'

B

c

D

E

F

G

H

'It was pointed out at the beginning of this chapter that

the principal .,call for a positivist concept of law is to

identify laws precisely for the practical purposes of the

present and that for the limited purpose,

it is desirable to

separate the 'is' from the 'ought'. To accomplish this no

more would appear

le be needed than simply those uses

of the word 'law' by courts; which is akin to Salmond's

definition alluded to above. Professor Hart's concept,

however, is

of 'legal system', which is a continuing

phenomenon.

When

Professor Hart thinks in a continuum, as he does

with society, he has lo bring in morality; but in order lo

defend positivism he shifts ground and takes refuge in the

present time-frame, for only

in this way can he justify the

exclusion of morality

for the purpose of identifying laws

here and now. There would thus appear to be a greater

separation between

his concept of law and his positivism

than ever he alleges between law and morality. For the

limited purpose of identifying 'law'

his concept seeks

lo

accomplish more than is necessary; for the purpose of

portraying law in a continuum it does not go far enough.

Bentham

in his Theory of Legislation, Chapter XII at page

60 said thus:

'Morality

in general is the art of directing the actions of

men in such a way as to produce the greatest possible

sum of good. Legislation ought

to have precisely the

same object. But although these

two arts, or rather

sciences, have the same

encl, they differ greatly in extent.

All actions, whether public or private, fall under the

jurisdiction of morals. It

is a guide which leads the

individual,

as it were, by the hand through all the details

f

.....

RAGHUNAlH v. U.0.1. [PANDIAN, J.]

of his life, all his relations wi!h his fellows. Legislation

cannot do

this; and, if it could, it ought not to exercise

a continual interference and dictation over the conduct

o(IDen. Morality commands each individual to

do aU

that is advantageous to the community, his own personal

advantage included. But there are many acts useful to

the community which legislation ought not to command.

There are also

many

llijurious actions which it ought not

to forbid, although moriility does so. In a word legislation

has the same centre with morals, but it has notthe same

circumference."

527

Reference may also be made to Krishna Kumar v. Union of India,

(1990] 4 sec 201.

A

B

c

The above passages remind us of !he distinction between law and

morality and

t'he line of demarcation which separates morals from legisla- D

tion. The sum and substance of it is that a moral obligation cannot be

converted into a legal obligation.

In the light of the above principle, the Attorney General is right in

saying that Courts are

seldom concerned with the morality which is the

concern of the law makers.

E

According to him there

is no unreasonableness, unfairness and

dishonesty

in bringing this amendment or in any way injuring the basic

feature of the Constitution and this amendment has not caused any damage

to the concept of reasonableness and non-arbitrariness pervading the entire

Constitution scheme.

F

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 !he

Twenty-sixth Amendment. The removal of Articles

291 and 362 has not G

made any change in the personality of the Constitution either in its scheme

nor

in its basic features, nor in its basic form nor in its character. The

question of identity

will arise only when there is a change in the form,

character and content of the Constitution. In

fact; in the present case, the

identity of the Constit:ition even on the tests proposed by the counsel of H

528 SUPREME COURT REPORTI (1993) 1 S.C.R.

A the writ petitioners and ioterverners, remains the same and unchanged.

Mr. R.F. Nariman has contended that

by removing the 'real and

substantial' distinction between the erstwhile

Princes forming a class and

the rest of the citizenary

of India the

Constitutional amendment has at one

stroke violated the basic structure of the Constitution as reflected both in

B Articles 14 and 51 ( c) and treated unequals as equals thereby giving a go-by

to a sol~mn treaty obligation which was sanctified as independent Constitu­

tional guarantee. He has drawn strength in support of his above argument

from the decisions in

Md.

Urman & Ors. v. State of Andhra Pradesh & Ors,

(1971) Supp. SCR 549 and Ramesh Prasad Singh v. State of Bi/1ar& Others,

C (1978) 1 SCR 787.

After carefully going through the above decisions which relate to

service matters,

we are afraid that such an

argumen: as one made by Mr.

Nariman could

be substantiated on the principles laid down in these two

D decisions that Article 14 will be violated if unequals are treated as

equals.

In our considered opinion this argument is misconceived and has no

relevance

to the facts of the present case.

One of the objectives of the

Preamble of our Constitution is 'fraternity assuring the dignity of the

individual and the unity and integrity of the nation.' I.t will be relevant to

cite the explanation given by Dr. Ambedkar for the word 'fraternity'

E explaining that 'fraternity means a sense of common brotherhood

of all

Indians.' In a country like ours with so many disruptive forces

of

regioohlism, communalism and linguism, it is necessary to emphasise and

reemphasise that the unity and integrity

of India can be preserved only by

a spirit of brotherhood. India has one common citizenship and every citizen

F should feel that he is Indian first irrespective of other basis. lo 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. Narimao,

which according to

him go to say that any law violating Article 14 is equally

G violative of the basic structure of the

Constitution, inasmuch as Article 14

is held to be a basic postulate of the Constitution.

One of the arguments advanced by Mr. D. D. Thakur is that the

Constitution should be read in the context of the pluralistic society of India

H where tliere are ~veral distinct and differing interests brought together

RAGHUNATH v. U.0.1. [PANDIAN, J] 529

and harmonised by the Constitution makers by assuring each Section, class A

and society, preservsation of certain political, cultural and >oci01l features

specific to that class or section.

By way of example, reference to Article 370 which confers a special status for Jammu and Kashmir, is made. He

continues to state that likewise in the North-Eastern States, the tribals were

given autonomus powers for their District Councils coequal to what is B

conferred on the states and that for minorities, special provisions are made

under Article 30. Besides Articles 25 and 26 are meant. to safeguard the

minorities and religious denominations. The persons to determine the

injury

will be those for whom these provisions were made and whose

interests are prejudiced. According to him, in such a circumstance the

"assurances and guarantees given under Articles

291 and 362 which are the C

magna karta assuring the rulers of their pre-existing rights cannot in any

way be destroyed. We do not think that the aforesaid special provisions

have any relevance herein.

As repeatedly pointed out supra, the only question

is

wh~ther there

is any change in the basic structure

of the

Constitution by deletion of D

Articles 291, 362 and by insertion of Article 363A and amendment of clause

(22) of Article

366. We have already answered this question

in the negative

observing that the basic structure or the essential features of the Constitu-

tion is/are in no way changed or altered by the impugned Amendment Act.

We cannot make surmises on 'ifs' and 'buts'

and arrive to any conclusion E

that Articles

291 and 362 should have been kept intact as special provisions

made for minorities in the Constitution.

It is but a step in the historical

evolution to achieve fraternity and unity of the nation transcending

all the

regional, linguistic, religious

and other diversities which are the bed-rock

on which the constitutional fabric has been raised. The distinction between

F

the erstwhile Rulers and the citizenary of India has to be put an end to so

as to have a common brotherhood.

On a careful consideration of the various aspects of both the writ

petitions,

we hold that the

Constitution (Twenty-sixth Amendment) Act of

1971 is valid in its entirety. G

For all the aforementioned reasons, both the Writ Petitions as well

as the connected

I. As are dismissed. No costs.

It has been brought to our notice that a number of writ petitions are

pending before the Karnataka High

Court touching the matter in question H

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

A raising various other questions. Since we have now upheld the validity of

the Twenty-sixth Amendment Act, the High Court

may proceed to dispose

of all those pending writ petitions with reference to other issues, if any

arising, in accordance with law and in the light of this judgment upholding

the Constitutional validity of the impugned Amendment Act.

B

c

D

MOHAN. J. I had the advantage of perusing the judgment of my

learned Brother Ratnavel Pandian, J. Though I am in respectful agree­

ment with him having regard to the importance of the constitutional issues

involved in this case, I would like to add the

following:

It was on the 15th day of August, 1947 when India attained freedom. Pandit Jawahar Lal Nehru said in memorable words:

'When the world sleeps, India

will awake to life and

freedom. A moment comes, which comes but rarely in

history, when

we step out from the old to the new, when

an age ends and when the

§OUI of nation long suppressed,

finds utterance.'

With the advent of freedom, India had to face problems

of highest

magnitude.

Of the many problmes three were most pressing and urgent.

E The earlier they were resolved, the better it was for the country. The firsl

of them was, to restore the communal harmony which had been impaired

to great extend.

(ii) Princely

States had to be integrated into the Indian

Union. (iii) There was necessity to frame a republican constitution which

would vibrate the

new ideas.

F With the dawn of independence it was felt that in an independent

India the existence of princely states

was an anachronism in the body

politic. Neither the past history nor economic and

administtative realities

could justify the existence of a multirude of autonomous islands. They had

to

be integrated with the rest of Indian

Union to forge the unity of the

country. After the withdrawal of Bri(ish Power the paramountcy lapsed to

G the princes. They could decide either to join India or Pakistan or even to

stay independent. Sardar V allabhbhai Pate~ the architect of Indian unity

and the master builder of destiny of nationalist India brought the princely

states into the Indian Union by means of judicious threats of force, appeals

to patriotism,

warnings of anarchy and diplomatic persuasion. An invitation

H

Was extended to all the rulers of the State to work through the Councils of

--

RAGHUNATH v. U.0.1. [MOHAN, J.)

Constituent Assembly for the common good of all.

531

This invitation v.as accepted on 19.5.1949. On this the White Paper

says at page 109:

"As the States came closer to the Centre it became clear

that

the idea of separate Constitutions being framed for

different constituent units of the Indian

Union was a

legacy from the Rulers' polity which, could have no place

in democratic set-up. The matter was, therefore, further

..fiscussed by the Ministry of States with the Premiers of

Unions and States on May 1~, 1949 and it was decided,

with their concurrence, that the Constitution of the States

should

also be framed by the Constituent Assembly of

India and

should form part of the Constitution of India.'

It

may not be correct to state that those who sat down together in

A

B

c

the Constituent Assembly and those who sent their

represent;:.tives there, D

sat as conqueror and conquered, as those who ceded and as those who

absorbed, as sovereigns or their plenipotentiaries contractir.g alliances and

entering into treaties

as high contracting parties to an act of

State. They

were not there as sovereign and subject, or as citizen and alien. On the

contrary, they were the sovereign peoples of India, free democractic equals, E

forgoing the pattern of a new life for the common weal moving with a spirit

of

all times.

When India became a Dominion

every vestige of sovereignty was

abandoned, equally so, by the

States. They all surrendered to the peoples

of the land

who through their representatives in the Constituent Assembly F

hammered out for themselves a new Constitution in which all were citizens,

in a new order having but one tie, and owing but one allegiance, devotion,

loyalty, fidelity, to the Sovereign Democratic Republic that is India as was

eloquently stated by Justice Bose in Virendra

Sing/I and Others v. State of

Uttar Pradesh, AIR 1954 SC 447 at p. 454: G

" At iine Stroke all other territorial allegiances were wiped

out and the past was obliterated except where exi}ressly

preserved; at one moment of time the new order was born

with its new allegiance springing from the ~e source for

all, grounded on the same basis; the sovereign will of the H

A

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

peoples of India with no class, no caste, no race, no creed,

no distinction, ....... "

The will of the Union Government was clearly expresssed in its

White Paper:

B At page 115 it is said:

'With the inauguration of the new Constitution the merged

States have lost all vestiges of existence as separate en­

tities'

· C and at page 130:

'The new Constitution of India gives expression to the

changed conception of Indian unity brought about

by ........ the unionisation of states ........

"

D and at page 131:

E

F

"Unlike the scheme of 1935 the new Constitution is not an

aliance betweeen democracies and dynasties but a real

union of the Indian people built on the concept of the

sovereignty of the people ...... All the citizens of India,

whether residing in States or Provinces, will enjoy the

same fundamental rights and the same legal remedies to

enforce them.

In the matter of their constitutional

relationship

with the Centre and in their internal set-up,

the

States will be on a par with the Provinces. The new

Constitution therefore finally eradicates all artificial bar­

riers which separated the States from Provinces and

achieves for the first time the objective of a strong, united

and democratic India

built on the true foundations of a

cooperative enterprise

on the part of the peoples of the

G

Provinces and the States alike.'

The princes

were. first stripped of their three virtal fucntions,

defence, foreign affairs and communications. They were then urged to

~.

transfer internal government to popular movements inside the respective

states.

In recompense they were allowed to retain their titles, dignities and

H

immunities and were given generous privy purses. It was in this context

... •

RAGHUNATH v. U.0.1. [MOHAN, J.)

Articles 291 and 362 were brought into the Constitution.

Likewise, Article

366 (22) defined the "Ruler".

533

A

On 2nd September, 1970, a Bill (Twenty-fourth Amendment Bill,

1970) was introduced omitting these articles. Though it was passed in the B

Lok Sabha it could not obtain the requisite majority of two-thirds of the

members present

in voting in the Rajya Sabha. Therefore, the motion for ..,.... introduction of the Bill was declared lost. Immediately thereafter the

President of India in exercise of his power under clause (22) of Article 366

of the Constitution signed an instrument withdrawing recognision of all the

Rulers. Thereupon, the order

was challenged in this Court under Article C

32 of the Constitution of India. In H.H. Maharajadhiraja Madhav Roa Jiwaji

. Rao Scindia Bahadur & Ors. v. Union of India, [1971) 3 SCR 9 it was held

that the order of the President derecognising the Rulers was ultra vires and

illegal. (In the later part of this judgment the ratio of this ruling

will be .... discussed in detail). In order to render this ruling ineffective the Twenty- D

Sixth Amendment to the Constitution was introduced. The following tabu­

lated statement will bring out the legal postilion as is obtainable after

Twenty

Sixth Amendment.

Articles before Articles after

26th Amendment 26th Amendment

Article

291 : 291.

(Privy purse sums of

Where under any covenant or Rulers) Rep. by the Constitution

agreement entered into

by the Ruler (Twenty-sixth Amendment) Act,

of any Indian State before the 1971, Section 2.

commencement of this Constitution,

the payment of any sums, free of tax,

has been guaranteed or assured

by

the

Government of the Dominion of

India to any Ruler

of such State as

privy purse

(a) such sums shall be charged on,

and paid out of, the Consolidated·.

Fund

of India; and

(b) the swns so paid to any Ruler

shall be

exempt from all taxes on

income.

E

F

G

H

A

B

c

D

E

F

G

H

534 SUPREME COURT REPORTS (1993) I S.C.R.

Article 31)''. 362. (Rights and privileges of Rulers

In excH ·sc of I he power of of Indian States). Rep. by the

Parliament or of the Legislature of a Constitution (Twrnty Amendment)

State to make laws or in the exercise Act, 1971 Section 2.

of the executive power of the Union

or of a State, due regard shall be had

to the guarantee or assurance

given

under any such covenant or

agreeable as is referred in article

291 with .respect to the personal

rights, privi-leges and dignities of

the Ruler of an Indian

State.

363-A. Recognil ion granted to

Rulers of Indian Slates to cease and

privy purses to be abolished-

N owithstanding anything in this

Constitution or

in any law for the

time being

in force -

(a) the

Prince, Chief or other

person, who at any time before the

commencement or the Constitution

(Twenty-sixth Amendment) Act,

1971, was

recognised by the

President as the Ruler of an Indian

State or any person who, at any time

before such commencement, was

recognised

by the President as the

successor of such Ruler shall, on

and from such

comme':'cement,

cease to be recognised as such Ruler

or the successor of such Ruler;

(b) on and

from the commencement

of the Constitution (Twenty-sixth

Amendment ) Act,

1971, privy purse

is abolished and all rights, liabilities

and obligations

in respect of privy

purse are extinguished and

accor­

dingly the Ruler or, as the case may

)

RAGHUNATII v. U.0.1. [MOHAN, J.) 535

be, the successor of such Ruler, A

referred to in clause (a) or any other

person shall not be paid and sum as

privy purse.

Article 362(22):

'Rulers" means the Prince, Chief or

'Ruler' In relation

to an Indian

State other person who, at any time

B

means the Prince, Chief or other before the commeneement of

person

by whom any such covenant the Constitution (Twenty-sixth

or agreement

as is referred to in Amendment) Act, 1971, was

clause

(i) of Article 291 was entered recognised by the

President as

into and

who for the time being is the Ruler of an Indian

State or

recognised by the President as the any person who, at any time c

Ruler of the State, and includes any before such commencement,

person

who for the time being is was recognised by the

President

recognised by the President as the as the successor of such Rulers.

successor of such Ruler.

D

The validity of this amendment was challenged which came up for

consideration

in His Holiness Keasavananda Bharati Sripadagalavaru v.

State of Kera/a, [ 1973] Suppl. SCR 1. The Court after holding that the basic

structure of the Constitution cannot be amended directed

by its judgment

dated

24th April, 1973 that the Constitution Bench will determine the

validity of the Constitution (Twenty-sixth Amendment) Act,

1971 in ac-E

cordance

with law and the cases are remitted to the Constitution Bench

for disposal

in accordance with law.

This is how the matter comes before us.

Mr.

Soli J. Sorabjee, learned counsel for the petitioners relying on

Madhav Rao's case (supra) makes the following submissions.

F

Articles 291 and 362 embodied and guaranteed pledges to the

Rulers. They are based on elementary principles of Justice. The underlying

purpose of these articles

was to facilitate stabilization of the new order and G

to ensure organic unity of India.

This Court

in no unmistakable terms said that Articles 366(22), 291

and 362 are integral part of the constitutional scheme. The institution of

rulership

is an integral part of the constitutional scheme. This enunciation

of law is by a Bench of 9 Judges and is binding. H

536 SUPREME COURT REPORTS (19931 I S.C.R.

A 'Integral" means essential. Such a provision, therefore, could con-

stitute 1 he basic feature of the Constitution. Conseqently, the total abolition

of Lli."c provisions of Constitution would necessarily damage its essential

or h.tsic feature.

There.fore, if the amendment damages the basic or an cs,;emi.il

B fealtu<' nf the Constitution it would be beyond the constituent power of the

Parliament as bid down in Wama11 Rao a11d others v. Union of India and

othcrr. (19801 3 SCC 587 @ 588-89 as also in Maharao Sahib Shri Bhim

Singhji '" Union of I11dia & Ors., (1981) l SCC 166 @ 212.

C The correct approach is lo examine in each case the place 11f the

particular feature in the scheme of our Constitution, its object and purp<•sc

as was held in Indira Ne/m1 Gandhi v. Raj Narain's case, (1975) Suppl.

sec P'' ge 1 @ 252.

It was by the incorporation of Articles 291 and 362 that the Constitu-

D lion makers were able to gel the willing consent a'!d cooperation of the

Rulers lo be brought within the fold of the Constitution as laid down by

this Court in Madhav's Rao case (supra). Without the accession of the

Rulers the Constitution would have been basically different. Equally, the

territory of India, its population, the composition of the State Legislature

E and Assemblies and the Lok Sabha and Rajya Sabha would be radically

different.

The learned counsel seeks to emphasise the nature and the character

of guarantees

contained in Articles 291 and 362. When they came to be

incorporated it was nothing more than the statutory recognition to the

F solemn promises held out by Government of India. In order to secure a

truly democratic form of Government in the united independent India

these solemn promises were meant to be honoured. They were intended to

incorporate a

just quid pro quo for surrender by them of their authority

and

powers and dissolution of their

States.

G

By repeal of these articles it has resulted in nullification of a just

quid pro quo. The underlying purpose of doing justice to the Rulers has

been subverted. Breach of faith has been sanctioned. Consequently, the

character

and personality of the Constitution have been changed from one

of honouring solemn promises and doing justice into one of

breaking

H solemn pledges.

RAGHUNATH v. U.0.1. [MOHAN, J.) 537

One of the tests of identifying the basic feature is, whether the A

identity of the Constitution has been changed. As laid down in Kesavanan-

da Bharati's case (supra), the question to be addressed is, can it maintain

its identity if something quite different

is substituted? The personality of

B

the Constitution must remain unchanged. It is not necessary that the

constitutional amendment which

is violative of a basic or essential feature

should

have an instant or immediate effect nn the basic slructure. It

is

enough if ii damages the essential feature as laid Jown in fl!dira Nehru

Gandhi's case (supra). The test to be applied, lhaefore, is whether the

amendmenl contravenes or runs counter to an imperative role or postulate

which

is an integral part of the Constitution. As a matter of fact in Bhim

Singhji's case (supra), it has been laid down that if a statutory provision C

Section 27 of the Urban Land (Ceiling & Regulation) Act, 1976 confers

unfettered discretion and thereby violates Article

14 of the Constitution, it

can also damage the basic structure of the constitution. For all these

reasons,

it

L' submitted that the impugned amendment is bad in law.

Mr. D.D. Thakur, learned counsel for the petitioner supportLng Mr.

Soli J. Sorabjee, urges that one of the most important features of the Indian

Constitution is morality.

By the impugned amendment, morality is

destroyed because Article 361 before the amendment contained a solemn

promise to the future generations.

By the impugned amendment the solemn

D

/>- promise is breached. E

The privy purses are charged upon the consolidated

fund of India

and therefore, goes out

of control of

Parliamenl.

These privy purses are payable during the life time of Maharajas or

Princes. If, therefore, it is temporary in nature and is to last only for a F

stated period, would the Parliament have intended to amend the law? If

that was the intention

of incorporation of these provisions in the Constitu­

tion, the amendment would run counter to such an

Lntention and therefore,

cannot be supported.

Article

14 guarantees equality which forbids unfair treatment. Where G

by reason of this amendment, the petitioner is subject to unfair treatment,

there is an impairment

of basic structure

sLnce equality is a basic structure.

In connection with this submission, the learned counsel cites case dealing

with equality as

Ajay Hasia v. Khalid Mujib Sehravardi, [1981) 1

SCC 722

and Minerva Mills Ltd. v. Union of India & Ors., [1981) 1 SCR 206 and H

538 SUPREME COURT REPORTS (1993) l S.C.R.

A (1983) 3 SCR 718.

In any event, privy purse is property. If the petitioner is deprived of

the same, it is unfair and is violative of basic structure. Even from that point

of

view, the amendment cannot be supported.

B Mr. A.K. Ganguli, learned counsel on behalf of the intervenor in I.A.

No. 3/92 in

W.P. 351{72 would submit that under Article 291 of the

Constitution,

payment of any sum has been guaranteed or assured. This

guarantee

is of great importance. The guarantee would mean continuity of

provision. Article 32( 4) also contains the word 'guarantee'. The same

C meaning must be ascribed to guarantee under

Article 291.

It is not without purpose that the privy purse is charged upon the

consolidated

fund of India as seen from Article 112(g). In this connection,

reference

may be made to

O.N. Mohindroo v. District Judge, Delhi, (1971)

Ill SCC 9. As to what would constitute the basic structure, could be

D gathered from Kesavananda Bharati Sripadagalvaru's case (supra), par­

tiL'Ulary, the passages occurring at ~aras 582-83, 631, 632, 1159 & 1473.

Mr. R.F. Nariman, learned counsel appearing for petitioner No. 1

would draw our attention to Section 87(b) of the Code of Civil Procedure.

E That provision lists the immunities of foreign rulers. That was challenged as

violative of Article 14 of the Constitution. That challenge was repelled in

Mohan/a/ Jain v. His Highness Maharaja Shri Swai Man Singhj~ (1962) I SCR

702. On the same line of reasoning, it should be held, where by the impugned

amendment, the princes who form a class is sought to be destroyed there is

violation of Article 14. Wherever unequals are treated as equals, this Court

F has disapproved of such treatment as seen from Ramesh Prasad Singh v. State

of Bihar& Ors., (1978) 1 SCR 787 at page 793 and Nagpur Improvement Trust

&Another v. VithaJ Rao& Ors., (1973) lll SCR 39.

If, therefore, there is violation of Article 14 that would be offensive of

G basic structure as seen from Minerva Mills Ltd. case (supra). It is added that

the impugned amendment is violative of Article 51(c) of the Constitution.

The learned Attorney General

in countering these submissions ad­

vanced

on behalf of the petitioners, would argue that the agreements with

the princes were pre constitutional agreements. Admittedly, they were

H entered into

for the purposes of facilitating integration of the nation and

)

·---'._ -

RAGHUNATH v. U.0.1. [MOHAN, J.) 539

creating the constitutional documents for all citizens including those of the A .

. native states. The history of the development relating to the merger agree­

ments and the framing of the Constitution clearly shows that it is really the

union of the people of the native states with the people

of the erstwhile

British India. The instruments of accession

are the basic documents and

not the individual agreements

with the rulers. Therefore, to contend that

the agreements were entered into

by the rulers as a measure of sacrifice

by them is untenable.

Secondly, the nature

of the covenant is not that of a contract since a

contract

is enforceable at law. On.the contrary, these covenants are made

non-justiciable

as seen from Articles 363.

The

covenants are political in nature and no legal ingredients as the

basis can be read into these agreements as laid down in Usman Ali Khan

v. Sagar Mal, (1965) 3 SCR 201.

B

c

The guarantees in Articles 291 and 362 are guarantees for the D

payment of privy purses. Such a guarantee can always be revoked in public

interest; more so, for fulfilling a policy objective or the directive principles

of the Constitution. This

is precisely what the preamble to the impugned

amendment

says. That being so, the theory of sanctity of contract or the

unamendability of Article

291 or 362 does not have any foundation. The E .

theory of political justice

is also not tenable since political justice means

the principle of political equality such

as adult suffrage, democratic form

of Government, etc.

The treaties/covenants/etc. entered into between the

Union of India

and the Rulers were

as a result of political action. No justiciable rights were F

intended to be created. Article

363 as it stood in its original form spells

out this proposition. The rights and privileges in the Articles prior to the

26th Amendment were as acts of

State of the Government and not in

recognition of the sacrifies of the rulers. By no means, can it be contended

that these guarantees

given to the rulers were ever intended to be con- G

tinued indefinitely.

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

ture

is to find out what are not basic features. Rights arising out of

covenants which were non-justiciable cannot be regarded as basic features.

Where, therefore, Article

363 makes these features non-justiciable, the H

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

A question of basic feature does not arise.

B

c

It is equally incorrect to contend that the amendment is violative of

Article

14. There is no such violation. It is not that by the proposed

'

amendment, Article 14 is amended. Whether a provision is violative of

basic feature of the Constitution has to be decided on the language of the

provisions.

The observations in

Madhav Rao's case have to be read in the context.

of the Constitution as it then stood. The Court did not intend limiting the

amending power.

The 26th Amendment does not in any manner amend the

Constitu­

tion impairing a basic structure.

The right

to property even as a fundamental right was not a part of

the basic structure. Even conceding that pre 26th Amendment right to privy

D purses to be property, it was a right capable of being extinguished by

authority of law.

A permanent retention of the privy purses and the privileges of the

rulers would be incompatible

with a sovereign and republican form of

E Government. Such a retention would also be incompatible with the

egalitarian form of the Government envisaged

by Article 14.

The words 'integral part of the scheme of the Constitution' in the

majority judgment

in Mudhavrao's case (supra) are not the same as basic

structure. They

have to be read in the context of a challenge to an

F ordinance which sought to render nugatory certain rights guaranteed in the

Constitution then existing. In

any event, the constitutional bar of Article

363 denudes the jurisdiction of any court in relation to disputes arising

from covenants and treaties executed

by rulers. Hence, it is idle to contend

that the

impugned amendment in any manner interferes with the basic

G structure of the Constitution.

Usman Ali's case (supra) is still good law. What is overruled by

Madhav Rao's case (supra) is the political character. Articles 291, 362,

366(22) could never have intended to form a basic structure. They have no

overall applicability permeating throughout the entire Constitution so to

H say that their absence will change the nature of the Constitution. The

RAGHUNATII v. U.0.1. (MOHAN, J.] 541

intrinsic evidence is the availability of a machinery for enforcement. In the A

_...,,

case of the rights guaranteed under Part III of the Constitution, a

machinery

is available for the enforcement.

On the contrary, such a

machinery for enforcement

of privy purses is not available under Article

363.

Theref~re, it is submitted that it is a inferior right than the fundamen-

ta! right. Hence, it cannot. be called a basic structure at all. As to what

is

B

the meaning of basic structure, reference must be made to Kesavanand's

~- case (supra).

~

The learned Attorney General also draws our attention to an Article

of K. Subba Rao, Ex-Chief Justice ot India in (1973] 2 SCC page 1 journal

section entitled as ''The two judgments: Golaknath and Kesavananda

c

Bharati'.

As to the morality part of the impugned amendment, it is urged that

there

is nothing immoral about it. Where the changed situation and anxiety

to establish an egalitarian society require the change

of law it is valid.

D

In reply to these submissions, Mr. Soli J. Sorabjee would contend

that the submissions

of learned Attorney General that the guarantees under

Articles 291

and 362 are unenforceable in view of Article 363 are not

tenable in view

of the judgment of

this Court in Madhav Rao's case'{ supra). /

It is also not correct to argue that it is an act of State and therefore,

E

no relief can be granted in respect of matters covered by it. Such a

submission has not been accepted by this court as seen from

Madhav

Rao's

case (supra) at pages 53; 90-93.

Strong reliance was placed on Usman Ali Khan's case (supra) that F

the privy purses are in the nature of compensation. The observations relied

:.

'-

upon by the learned Attorney General have been regarded by the majority

in

Madhav

Rao case as not only obiter but also incorrect as seen from

Usman Ali Khan's case at pages 98, 145 & 193. The submission that the

privy purses are mere privileges is contrary to the decision of Madhav Rao's

G

case (supra) since these have been held to be fundamental rights guaran-

teed under Articles 19(1)(b) and 31.

..-·"-J...

Having regard to the above submissions, the sole question would be

whether the 26th Amendment is beyond the constituent power of the

Parliament ? To put it in another words, does the amendment damage any H

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

A basic or essential featilfe of the Constitution ?

The law prior to and after 26th Amendment has already been set out "'" .....

in the tabulated statement. As cou'.j be seen by the impugned amendment,

Articles

291 and 362 have come to be omitted. A new Article

363A has

B

come to be inserted. The original c:ause 22 of Article 366 has come to be

substituted by a new clause. In pith and substance, this amendment seeks

to terminate the privy purses and privileges

of the

Princes of the former

Indian States. It also seeks to terminate expressly the recognition already

~

granted to them as guaranteed and assured under Articles 291 and 362 of

'

the Constitution. Therefore, the impugne J amendment has withdrawn the

c

guarantees and assurances and abolished the privy purses, personal rights,

privileges and dignities. The validity of the amendment

is attacked

as

under:

(i) Articles

291, 362 and 366(22) of the Constitution form an impor-

tant

basic structure and demolition of these articles would amount to

D

violation of basic structure.

(ii) The covenants entered into are

in the nature of contracts backed

by constitutional guarantees. They are further

affinaed by making the privy

purses an expenditure charged upon the consolidated fund of India. Such

E

being the position, a breach of the covenant cannot be made since they

were intended to incorporate a just

quid pro quo which has come to be

__...,

nullified by the impugned amendment.

(iii) It

is arbitrary and unreasonable and is, therefore, violative of

F

Article 14 and consequently basic structure.

(iv) It is not moral.

~

:

In order to appreciate the above points, it is necessary to set out the

background

in which the Articles came to be incorporated in

the. Constitu-

G

lion. It was on July 5th, 1947, Sardar Vallabhbhai Patel exhorted as under:

'This country, with

its institutions, is the proud heritage

of the people

who inhabit it. It is an accident that some

~ ..

live in the States and some in British India, but all alike

partake of its culture and character. We are all knit

H together by bonds of blood and feeling no less than of

1

~

RAGHUNA1H v. U.0.1. [MOHAN, J.) 543

self-interest. None can segregate us into segments; no A

impassable barriers can be set up between us. I suggest

that it

is, therefore, better for us to make

law~ sitting

together

as friends than to make treaties as aliens. I invite

my friends, the Rulers of States and their people to the

councils of the Constituent Assembly

in this spirit of

B

friendliness and cooperation in a joint endeavour, inspired

by common allegiance to our motherland for the common 1'-

good of us all.

We are at a momentous stage in the history of India.

By common endeavour, we can raise the country to a new c

greatness while lack of unity will expose us to fresh

calamities. I hope the Indian States

will bear in mind that

the alternative to co-operation

in the general interest is

anarchy and chaos which will overwhelm great and small

in a common ruin if

we are unable to get together in the

D

minimum of common tasks. Let not the future generation

curse

us for having bad the opportunity but failed to tum

it to our mutual advantage. Instead, let

it be our proud

privilege to leave a legacy of mutually beneficial relation-

ship which would raise

this sacred land to its proper place

amongst the nations of the world and turn

it into an abode E

?-

of peace and prosperity.'

I

While clarifying the position, be spoke on 13th November, 1947:

"The State does not belong to any individual.

-/ Paramountcy has been eliminated, certainly not by the F

efforts of the Princes, but by that of the people. It is

• ·~

therefore, the people who have got the right to assert

themselves and the Nawab cannot barter

away the popular

privilege

of shaping its destiny.'

In this connection, it is

worthwhile to quote the following from "The

G

framing of India's Constitution" by B. Shiva Rao at page 520 as under :

--v-- "The Indian National Congress was in the past well-

known for its sympathy with the Indian States People's

Conference, a body which sought to establish popular

H

A

B

c

D

E

F

G

H

544

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

governments

in the

States. Jawaharlal Nehru himself was

closely associated with this movement. The start of the

proceedings

in the Constituent Assembly was not par-

ticularly propitious for cooperation between the Assembly

and the Rulers. Moving the Objectives Resolution

on

December 13, 1946, in the Constituent Assembly (in which

neither the Indian

States nor the Muslim League were at

that time represented) Nehru explained that the resolution

did not cern itself with what form of Government the

States had or 'whether the Rajas and Nawabs

will continue

or

not". He also emphasized that if a part of the Indian

Republic desired to have

its own administration it was

welcome to have it. But at the same time he made it clear

that the

final decision in the matter whether or not there

should be a monarchical form of Government

in the Slates

was one for decision by the people of the

States."

The political background in which the Articles came up to be incor-

porated

in the Constitution has already been set out. At this stage, what

requires emphasis

is that the people brought about the integration of the

States

"with the erstwhile British India which came to be freed from the

foreign

yoke. This is very clear from the speech of Sardar Vallabhbhai

Patel

on 13th November, 1947 quoted above.

It was in recognition of the privileges and powers which existed

hitherto the

privy purses came to be conferred. The articles assured the

payment of privy purses.

Nature of What exactly is a nature of privy purse in the realm of

Privy Purse law could be gathered from Usman Ali

Khan's case (supra)

at page 206 as under :

"The third contention of Mr. Pathak raises the question

whether an amount payable to a Ruler of a former Indian

State as privy purse is a political pension within the

meaning of Section 60(1)(g), Code of

Civil Procedure. The

word

'pension" in Section 60(1)(g), Code of Civil Proce­

dure implies periodical payments of money by the Govern­

ment to the pensioner. See Nawab Bahadur of

}

r-

__,,.

.....

I-

~

....

RAGHUNATII v. U.0.1. [MOHAN, J.) 545

Murshidabad v. Kamani Industrial Bank Ltd., (4) 1931 LR A

58 IA. 215, 219 & 220 and in Bishamber Nath v. Nawab

/mdad Ali Khan, 1890 L.R. 17 I.A. 181, 186, Lord Watson

observed:

'A pension which the Government of India has given

B

a guarantee that it will pay, by a treaty obligation con-

tracted with another sovereign power, appears to their

'1'-·

Lordships to be, in the strictest sense, a political pension.

The obligation to

pay, as well as the actual payment of the

pension must,

in such circumstances, be ascribed to

reasons of

State policy.' c

Now, the history of the integration and the ultimate ab-

sorption of the Indian States and of the guarantee for

payment of periodical sums as privy purse to the Rulers

+

of the former Indian States are well-known. Formerly

D

Indian States were semi-sovereign vassal States under the

suzerain!}' of the British Crown. With the declaration of

Independence, the paramountcy of the British Crown

lapsed as

from August 15, 1947 and the Rulers of Indian

States became politically independent sovereigns. The In-

E

dian States parted with their sovereignly in successive

stages, firstly on accession to the Dominion of India,

secondly

on integration of the

States into sizeable ad-

ministrative units and on closer accession to the Dominion

of Indian and finally on adoption of the Constitution of

India and extinction of the separate existence of the States F

and Unions of States. During the second phase 'of this

...

~· political absorption of the States,. the Rulers of the Mad-

hya Bharat States including the Ruler of Jaora State

entered into a Covenant on April 22, 1948 for the forma-

tion of the United State of Gwalior, Indore and Malwa

G

(Madhya Bharat). By Article II of the Covenant, the

Covenanting States agreed to unite and integrate their

territories into one State. Article Vl provided that the

Ruler of each Covenanting State shall not later than July

l, 1948 make over the administtation of the State to the

Rajpramuckh and thereupon all rights, authorily and juris- H

).

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

A diction belonging to the Ruler and appertaining or in-

cideotal to the Government of the State would vest in the

United State of Madhya Bharat. Article XI (1) provided

that "the Ruler of each covenanting State shall be entitled

to

receive annually from the revenues of the

U oited State

B

for his privy purse the amount of specified against that

Covenanting State in Schedule I." Io Schedule I, a sum of

Rs. 1, 75,000 was specified against the State of Jaora.

Article

XI(2) provided that the amount of the privy purse

~

was intended to cover all the expenses of the Ruler and

his family including expenses of the residence, marriage

c and other ceremonies and neither be increased nor

reduced for any reason whatsoever. Article Xl(3)

provided that the Rajpramukh would cause the amount to

be paid to the Ruler in four equal instalments at the

beginning of each quarter in advence. Article

XI( 4)

D

provided that the amount would be free of all taxes

whether imposed by the Government of the United State

or

by the Government of India. Article XIII of the

Covenant secured to the ruler of each Covenanting State

all personal privileges, dignities and titles then enjoyed by

them. Article XIV guaranteed the succession, according

E to law and custom, to the gaddi of each Covenanting State

~

and to the personal rights, privileges, dignities and titles

of

the Ruler. The covenant was signed by all the Rulers I

of the covenanting state. At the foot of the Covenant, it

was stated that "The Government of India thereby concur

F

in the above Covenant and guarantee all its provisions."

lo confirmation of this consent and guarantee, the

Covenant was signed by a Secretary to the Government

'--<I ...

of India.

G

On the coming into force of the Constitution of India,

-the territories of Madhya Bharat became an integral part

of

India. Article 291 of the Constitution provided :

,,.,.... ··~

"Where under any covenant or agreement entered into

by the Ruler of any Indian State before the commence-

H meot of this Constitution, the payment of any sums, free

RAGHUNAlH v. U.0.1. [MOHAN, J.) 547

of tax, has been guaranteed or assured by the Government A

of the Dominion of India to any Ruler of such State as

privy purse

:-

(a) Such sums shall be charged on, and paid out of, the

Consolidated Fund

of India; and

B

(b) the sums so paid to any Ruler shall be exempt from

all taxes on income."

In view of the guarantee

by the Government of the

Dominion

of India to the Ruler of Jaora State in the

c

Covenant for the formation of the

United State of Madhya

Bharat, the payment

of the sums specified in the covenant

as privy purse to the Ruler became charged on the Con-

solidated Fund of India, and became payable to

him free

from all taxes on income. Article 362 provides that in the

-t·

exercise of the legislative and executive powers, due D

regard shall be had to the guarantee given in any such

covenant as

is referred to in Article 291 with respect to

the personal rights, privileges and dignities of the Ruler

of an Indian State. Article 363(1) provides that not-

withstanding anything contained in the Constitution, the

E

Courts would have no jurisdiction in any dispute arising

out

of any provision in any covenant entered into by any

Ruler of an Indian State to which the Government of the

Dominion

of India was a party, or in any dispute in respect

of any right accruing under

or any liability or obligation

arising out

of any of the provisions of the Constitution F

relating to any such covenant. Article 366(22) provides

that the expression "Ruler"

in relation to an Indian State

means a person

by whom the covenant referred to in

Article 299(1) was entered into and who for the time being

is recognised by the

President as the Ruler of the State,

and includes any person who for the time being

is recog-

G

nised by the

President as the successor of such Ruler .

._,..j...

Now, the covenant entered into by the Rulers of Mad-

hya Bharat

by which they gave up their sovereignity over

their respective territories and vested it in the

new

United H

A

B

c

D

E

F

G

548

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

State of Madhya Bharat. The Covenant was an act of State,

and any violation of its terms cannot form the subject of

any action in any municipal courts. The guarantee given by

the Government of India was in the nature of a treaty

obligation contracted with the sovereign Rulers of Indian

States and cannot be enforced by action in municipal cowts.

ls sanction is political and not legal. On the coming into

force of the Constitution of India, the guarantee for the

payment of periodical sums as privy purse is continued by

Article 291 of the Constitution, but its essential political

character

is preserved by Article 363 of the Constitution,

and the obligation under

this guarantee cannot be

en­

forced in any municipal court. Moreover, if the President

refuses to recognise the person by whom the covenant was

entered into as the Ruler of the State, he would not be

entitled to the amount payable as privy purse under Ar·

tide 291. Now, the periodical payment of money by the

Government

to a

Ruler of a former lndian State as privy

purse on political considerations and under political sanc­

tions and not under a right legally enforceable in any

municipal court is strictly a political pension within the

meaning of Section (j()( 1 )(g) of the Code of Civil Proce­

dure. The use of the expression 'purse' instead of the

expression 'pension' is due to historical reasons. The privy

purse satisfies all the essential characteristics of a political

pension, and as such, is protected from execution under

Section (J()(l)(g), Code of Civil Procedure. Moreover, an

amount

of the privy purse receivable from the

Govern­

ment cannot be said to a debt or other property over which

or the proceeds of which he has disposing power within

the main part of Section 60(1), Code of Civil Procedure.

It follows that the third contention of Mr. Pathak must be

accepted, and

it must be

held that the amounts of the privy

purse are not liable to attachment or sale in execution of

the respondent's decree.' (emphasis supplied)

This case

is an authoricy, for the proposition that it is a political

pension. The question

is whether this dictum has been

overruled by Mad­

H hav Rao's case (supra).

I

RAGHUNATII v. U.0.1. [MOHAN, J.)

At page 145 of the said decision, it is held :

'On the coming into force of the Constitution of India,

the guarantee for payment of periodical &wns as privy

purse is continued by Article 291 of the Constitution, but

its essential political character is preserved by Article 363

of the Constitution and the obligation under this guarantee

cannot be enforced

in any

municipal court. With all

respect, it appears to me that all the above was not strictly

necessary for the decision of the case and it would have

been enough to say that privy purse was a pension - a

word

which according to the Oxford Dictionary means, 'a

periodical payment made specially by a Government,

com­

pany, employer etc." -which was political in nature

because

it

was based on a political settlement. However

it was not the expression of opinion of only one learned

Judge but the unanimous view of three learned Judges or

this Court. In Kanwar Shri Jlir Rajendlll Singh v. Union of

India, (1970) 2 SCR 631 a Bench of another five learned

Judges of this

Court have pronounced on the

non-enfor­

ceability of the provision for payment of privy purse under

Article 291 by resort to legal proceedings. In my view, on

the reasoning already given by me it must be held that the

payment of

privy purse

although placed on a pedestal

which defies annihiliation or fragmentation as long as the

above-mentioned constitutional

provisions enure is still

subject to the

constitutional bar of non-justiciability and

cannot be upheld or secured by adjudication in a court of

law including this Court.

Further, at

page 193 of the said decision, it is held : "The learned Judges in that case had no occasion to

consider nor did they go into the scope of Article 291 or

Article 363. Every observation of this Court is no doubt,

entitled to

weight but an obiter, cannot take the place of

the ratio.'

549

A

B

c

D

E

F

G

A

careful reading of the above shows what is overruled is the political

character and not that the privy purse is not a political pension. Even H

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

A otherwise, if really, this dictum has been overruled, the very basis of the

judgment of Usman Ali Khflll's case (supra) would disappear. Then the

reasoning in relation to the attacbability under Section 60 of Code of Civil

Procedure would be incorrect. Be that so, what is argued by Mr. Soli J.

Sorabjee is the guarantee under Article 291 is enforceable notwithstanding

B Article 363. Therefore, this discussion need not detain us. As to the scope

of Article

363, it

could be culled from Madhav Rao's case (supra) at

page 99:

c

D

'A dispute as to the right to receive the privy purse, is

therefore not a dispute arising out of the covenant within

the first limb of Article 363, nor is it a dispute with regard

to a

right accruing or obligation arising out of a provision

of the Constitution relating to a covenant.

, But since the right to the privy purse arises under

Article

291 the dispute in respect of

which does not fall

within either clause, the jurisdiction of the Court is not

excluded in respect of disputes relating to personal rights

and privileges which are granted by statutes.'

One thing which must be bome in mind while appreciating the scope

E of Madhav Rao's case (supra) is what occurs at page 75 as under:

F

G

Scope of Scindia 'Whether the Parliament may by a constitutional amend­

Ruling ment abolish the rights and privileges accorded to the Rulers

is not, fl/Id cannot be, debated in this petition, for no such

constitutional amendment has been made. The petitioner

challenges the authority of the Jnsident by fl/I order purporting

to be made under Atticle 366(22) to withdraw recogllition of

Rulers so as to deprive them of the rights fl/Id privileges to

which they are entitled by vittue of their status as Rulers."

(emphasis supplied)

This Court bad no occasion to go into the scope of constitutional

amendment

like the present one. Therefore,

all reasons addressed for

striking down the presidential order must be confined only to the authority

of the President

to issue the order

under Article 366(22) of the Constitu-

H tion.

RAGHUNATII v. U.0.1.-[MOHAN, J.) 551

BASICSTRU·

CTURE

This takes us to the power of amendment conferred A

under Article 368. That power of amendment is unlimited

except that the basic structure of the Constitution cannot

be amended What then is the basic structure ?

In Kes11V1111anda's case (supra), Sikri, CJ. stated at page 165 as 8

under:

Whether

Articles 291,

362, 366(22)

"The learned Attorney-General said that every

provision of the Constitution is essential; otherwise, it would.

not has been put in the Constitution. This is true. But this

does not place every provision of the Constitution in the C

same position. The true position is that every provision of

the Constitution can

be amended provided in the

result the

basic foundation and structure of the constitution

remains

the same. The basic structure may be said to consist of the

following features : D

(i) Supremacy of the Constitution;

(ii) Republican and Democratic form of Government;

(iii)

Secular character of the Constitution;

(iv) Separation of powers between the Legislature, the

executive and the judiciary;

(v) Federal character of the Constitution.

E

F

The above structure is built on the basic foundation,

i.e. the dignity and freedom of the individual. This is of

supreme importance.

This cannot by any form of amend-

ment be destroyed. G

The above foundation and the above basic features are

easily discernible not only from the preamble but the

whole scheme of the Constitution, which I have already

discussed." H

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

A Shelat & Grover, JJ. in the said judgment stated at page 280 as +-

under:

B

c

'The basic structure of the Constitution is not a vague

concept and the apprehepsions expressed on behalf of the

respondents that neither the citizen nor the Parliament

would be able to understand it are unfounded. If the

historical background, the Preamble, the relevant

provisions thereof including Article 368 are kept in mind

there can be no difficulty in discerning that the following

can be regarded as the basic elements of the constitutional

structure.

(These cannot be catalogued but can only be

illustrated).

1. The supremacy of the Constitution.

2. Republican andDemocratic form of Government and

D sovereignity of the country.

E

F

G

H

3. Secular and federal character of the Constitution.

4. Demarcation of power between the legislature, the

executive and the judiciary.

5. The dignity of the individual secured by the various

freedoms and basic rights in

Part III and the mandate to

build a welfare State constrained in Part IV.

6. The unity and the integrity of the nation."

Hedge & Mukherjea, JJ. in the said judgment stated at page 314 as ~

under:

'We find it difficult to aa:ept the contention that our

Constitution makers after making immense sacrifices for

achievi!lg certain ideals made provision in the Constitution

itself for the destruction of these ideals. There is no doubt

as men of experience and sound political knoWledgc, they

must have known that social, economic and political chan­

ges are bound to come with the passage of time and the

Constitution

must be capable of

being so adjusted as to

,..v ...

RAGHUNATH v. U.0.1. (MOHAN, J.)

be able to respond to those new demands. Our Constitu­

tion

is not a mere political document. It is essentially, a

social document. It

is based on a social philosophy and

every

social philosophy like every religion has two main

features, namely, basic and circumstantial. The former

remains constant but the latter

is subject to change. The

core of a religion

always remains constant but the prac­

tices associated with it

may change. Likewise, a Constitu­

tion like ours contains certain features which so essential

that they cannot be changed or destroyed. In any event it

cannot be destroyed

from within. In other words, one

cannot legally use the Constitution to destroy itself.

Under

Article 368 the amended Constitution must remain 'the

Constitution' which means the original Constitution.

When

we speak of the 'abrogation' or 'repeal' of the

Constitution,

we do not refer to any form but to substance.

If one or more of the basic features of the Constitution

are taken away to that extent

the Constitution is abrogated

or repealed. If all the basic features of the Constitution

are repealed and some other provisions inconsistent with

those features are incorporated, it cannot still remain the

Constitution referred to

in Article 368. The personality of

the Constitution must remain unchanged." (emphasis sup­

plied).

Further, at page

322, it was stated as under :

"On a careful consideration of the various aspects of

the case we are convinced that the Parliament has no

power to abrogate or emasculate the basic elements or

fundamental features of the Coostitotioo such as the

sovereignity of India, the democratic character

of the

individual freedoms secured to the citizens. Nor has the

Parliament the power to revoke the mandate to build a

welfare State and egalitarian society.'

553

Jaganmohan Reddy, J. in the said judgment stated

al page 517 as

A

B

c

D

E

F

G

under: H

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

A 'I will now consider the question wllich has been

+---

strenuously contended, namely, that there are no essential '

features, that every feature in the Constitution is essential,

JDd if this were not so, the amending power under the

Constitution will apply only to non-essential features

B

which it would be difficult to envisage was the only pur-

pose of the framers in inscribing Article 368 and that,

therefore, there

is no warrant for such a concept to be

~-

read into the Constitution. The argument at first flush is

'

attractive, but if we were to ask ourselves the question

c

whether the Constitution has any structure or is structure-

less or is a 'jelly fish' to use an epithet of the learned

Advocate for the petitioner, the answer would resolve our

doubt. If the Constitution is considered as a mechanism,

or call it an organism or a piece of constitutional engineer-

D

ing, whichever it is, it must have a structure, or a composi-

tion or a base or foundation. What it is can only be

ascertained,

if we examine the provisions which the

Hon'ble

Chief Justice has done in great detail after which

he has instanced the features

which constitute the basic

structure. I do not intend to cover the same field once

E again. There is nothing vague or unascertainable in the

preamble

and if what is stated therein is subject to this

criticism it would be equally

true of what is stated in

Article 39(b) & (c) as these are also objectives fundamen-_

tal

in the governance of

che country which the State is

F enjoined to achieve for the amelioration and happiness of

its people. The elements of the basic structure arc indi-

cated in the preamble and translated in the various

provisions of the Constitution. The edifice of our Constitu-

tion is built upon and-stands on several props, remove any

G of them, the Constitution collapses. These are: (1)

Sovereign ,Democratic Republic; (2) Justice, social,

economical and political; (3) Liberty of thought, expres-

sion, belief, faith and wors1iip; (4) Equality of status and ,,.,, -

of opportunity. Each one' of these is importallfand col-

H

lectively they assure a way of life to the people of India

~

RAGHUNATII v. U.0.1. [MOHAN, J.) 555

which the Constitution guarantees. To withdraw any of the A

above elements the structure will not survive and it will

not be the same Constitution, or this Constitution nor can

it maintain its identity, if something quite different is

substitutCd in its place, which the sovereign will of the

people alone can do."

B

-;..-

Palekar, J. in the said judgm~nt would say at page 619 :

"Since the 'essential features and basic principles'

referred to

Mr.

Palkhivala are those culled from the

provisions of the Constitution

it is clear that he wants to c

divide the constitution into parts -one of the provisions

containing the essential features and the other containing

non-essential features. According to

him the latter can be '~

amended in any way the Parliament likes, but so far as the

former provisions are concerned, though they may be

D

amended, they cannot be amended so as to damage or

destroy the core of the essential features. Two difficulties

arise,

who is to decide what are essential provisions and

non-essential

provisions? According to Mr.

Palkhivala it

is the court which should do it. If that is correct, what

E

stable standard will guide the court in deciding which

provision is essential and which is no essential? Every

provision, in one sense, is an essential provision, because

if a

law is made by the

Parliament or the State Legislatures

contravening

even the most insignificant provision of the

constitution, that

law will be void. From that point of view F

the courts acting under the constitution will have to look

upon its provisions with an equal eye. Secondly, if an

essential provision

is amended and a new provision is

inserted which, in the opinion of the constituent body,

should be presumed to be more essential than the one

G

repealed, what is the yardstick the court is expected to

employ? It

will only mean that whatever necessity the

..... -~ constitnent body may feel in introducing a change in the

constitution, whatever change of policy that body may like

to introduce in the constitution, the same is liable to be

struck down if·the court is not satisfied either about the H

556

A

B

c

D

E

F

G

H

SUPREME COURT REPORTS [19'J3] 1 S.C.R.

necessity

or the policy. Clearly this is not a function of the

courts. The

difficulty assumes greater proportion when an

amendment

is challenged on the ground that the core of

an

essential feature is either damaged or destroyed. What

is the standard? Who will decide where the core lies and

when it

is reached?

One can understand the argument that

particular provisions

in the constitution embodying some essential features are not amendable at all. But the dif­

ficulty arises when it is conceded that the provision is

liable to be amended, but no so as to touch its 'core'. Apart

from the difficulty in determining where the 'core of an

essential features' lies, it does not appear to be sufficiently

realised what fantastic results may follow in working the

Constitution. Suppose an amendment of a provision

is

made this year. The mere fact that an amendment is made

will not give any body the right to come to this Court to

have the amendment nullified on the ground that it affects

the core

of an essential feature. It is only when a

law is

made under the amended provision and that law affects

some individual's right, that he

may come to this Court.

At that time he

will first show that the amendment is bad

because it affects the core of an essential feature and if

he succeeds there, be

will automatically succeed and the

law made by the Legislature in the confidence that it is

protected by the amended constitution

will be rendered

void.'

Khanna, J. in the said judgment at page 71iJ stated as under :

'So far as the question is concerned as to whether the

right to property can be said to pertain to basic structure

or framework of the Constitution, the answer, in my

opinion, should plainly be in the. negative.•

Mathew, J. in the said judgment at page 827-828 observed :

'But the question will still remain, even when the core

or the essence of a Fundamental Right is found, whether

the Amending Body has the power

to amend it in such a

way as to destroy or damage the core. I have already said

RAGHUNATII v. U.0.1. [MOHAN, J.)

that considerations of justice, of the common good, or "the

general welfare in a democratic society" might require

abridging

or taking away of the Fundamental Rights.

I have tried, like Jacob of the Old Testament to wrestle

all the night with the

ange~ namely, the theory of implied

limitation upon the power of amendment. I have

yet to

learn from what source this limitation arises. Is it because

the people who were supposed to have framed the

Con­

stitution intended it and embodied the intentfon in an

unalterable framework?

If this is so, it would raise the

fundamental issue whether that intention should govern

the succeeding generations for

all time. If you subscribe

to the theory of Jefferson, to which I have already referred

and which

was fully adopted by Dr. Ambedkar, the

prin­

cipal architect of our Constitution -and that is the only

same theory -I think there is no foundation for the theory

of implied limitations. Were

it otherwise, in actual reality

itwould come to this : The representatives

of some people

-the framers of our Constitution -could bind the whole

people for

all time and prevent

them from changing the

constitutional structure through their representatives.

And, what is this sacredness about the basic structure

of

the Constitution? Take the republican form of

Govern­

ment, the supposed cornerstone of the whole structure.

Has mankind, after its wandering through history, made

a final and unalterable verdict that it is the best form of

government? Does not history show that mankind

has

changed its opinion from generation to generation as to

the best form of Government? Have not great

philosophers and thinkers throughout the ages expressed

different

views on the subject? Did not

Plato prefer the

rule

by the Guardians? And was the sapient Aristotle

misled when he showed

his proclivity for a mixed form of

government?

If

there was no consensus yesterday, why

expect one tommorow?'

557

Commenting on this case and Go/alcnalh 's decision, Subba Rao, Ex.

A

B

c

D

E

F

G

CJ.I. in 'The two judgments: Golaknath

and Kesavananda Bharrlli' (supra) H

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

A says at page 18:

B

c

D

E

'The result is that the Supreme Court by majority declared

that the Parliament under the Indian Constitution is not

supreme, in that it cannot change the basic structure of

the Constitution. It also declared by majority that under

certain circumstances, the amendment of the fundamental

rights other than the right to property would affect the

basic structure and therefore would be void. The question

whether the amendment of the fundamental right to property

would under some circumstances affect the basic structure

of the Constitution is not free from doubt; the answer

depends upon the view the Supreme Court takes hereafter

of

the impact of the opinion of Mathew, Beg,

Dwivedi and

Chandrachud, JJ. - the fundamental rights are the basic

features of the Constitution-on the opinion of the six

judges, who held that the core of the fundamental rights

is part of the basic structure of the Constitution. One

possible view is that together they form a clear majority

on the content of the basic structure; another pos.~ible view

is that their opinion should be read along with their finding

that the entire Constitution, except perhaps the bare

machine of Government, could be repealed by amend­

ment."

If this be the law, the question would be whether Articles 291, 362,

F 366(22) could ever be intended to form a basic structure. The answer

should be in the negative. They have no overall applicability permeating

through the entire Constitution that the absence of these provisions will

change the nature and character of the Constitution. While examining the

question whether these Articles constitute the basic structure, one must

G have regard to Article 363 of the Constitution. They are made enforceable

in a Court of law. If reaUy they are to form basic structure, would not a

corresponding right as occurring under Article 32( 4) have been provided?

In Indira Nehru Gandhi's case (supra), the foUowing observations are

H

found in para 663 :

-<.

I

--{

RAGHUNATii v. U.O.I. [MOHAN, J.) 559

Preamble

vis-a-vis

object of

ammdment

'The preamble, generally, uses words bf 'passion and A

power' in order to move the hearts of men and to stir them

into action. Its own meaning and implication being in doubt,

the preamble cannot affect or throw light on the meaning

of the enacting words of the Constitution. Therefore, though

our Preamble was voted upon as is a part of the Constitu-B

tion, it is really 'a preiminary statement of the reas<ins'

which made the passing of the Constitution necessary and

desirable. As observed by Gajendragadkar, J. Ci In re

Berubari Union v. Exchange of Enclaves, what Willoughby

has said about the preamble to the American Constitution, C

namely, that it has never been regarded as the source of any

substantive power, is equally true about the prohibitions and

limitations. The preamble of our Constitution cannot there-

fore be regarded as a source of any prohibitions or limita­tions."

Therefore, regard must be had to the scope of the preamble which

states:

'The concept of Rulership,

with

privy purses and spe­

cial privileges un-related to any cumnt functions and social

J1UIPOSU, is incompatible widt an egalitarian social order.

Government have therefore decided to terminate the privy

purses and privileges of the Rulers of former Indian

States. It

is necessary' for

the purpose, apart from amend­

ing the relevant provisions of the Constitution, to insert a

new article therein so as to terminate expressly the recog­

nition already granted to such rulers and to abolish privy

purses and extinguish all rights liabilities and obligations

in respect of privy purses.'

D

E

F

If the 26th amendment aims to establish an egalitarian society which is G

in consonance with the glorious preamble, how could this provision be called

a basic structure?

No doubt,

inMadhav Rao's case (supra), it was held that

these provisions are an integral part of the Constitution of this country. Apart

from the fact that all these reasons were addressed against the power of the

President under Article 366(22), this statement cannot tantamount to basic H

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

A structure. Nor would it mean the same as the basic structure.

To determine whether these provisions constitute basic structure or

not, they cannot be viewed in the historic background. By repeal of these

provisions the personality of the Constitution has not changed. India could

still retain its identity and it can hardly be said that the personality has

B changed ..

c

D

E

F

G

H

Change of

T1111e & Law.

The rep11diation of the guarantees might result in the

nullification of a just quid pro quo. But, if it is the will !>f

the people to establish an egalitarian society that will be in

harmony with the changing tunes of times. It cannot be

denied that law cannot remain static for all times to come.

The extract of Mathew, J. in Kesavananda's case highlights

this aspect as under :

'But

the question will still remain, even when the core

or

the essence of a Fundamental Right is found, whether

the Amending Body has the power to amend it in such a

way as to destroy or damage the core. I have already said

that considerations of justice, of the common good, or 'the

general

welfare in a democratic

society" might require

abridiging or

taking away of the Fundamental Rights.'

Weems v. United States, 54 Law Edition

801 quoted in Francis Corrdie

Mullin v. Administrator, Union Territory of Delhi & On., (1981) l SCC li08

at page 617 succinctly states the law on this aspect as under :

'T1111e works changes, brings into existence new condi­

tions and purposes. Therefore, a principle, to be vilal, must

be capable of wider application than mischief which gave it

birth. This is peculiarly true of Constitutions. They are not

ephemeral enactments designed to meet passing occasions.

They are, to use the words of Chief Justice Manhal4

'designed to approach immortality as nearly as human

institutions can approach it'. The future is their care, and

provisions for events of good and bad tendencies of which

no prophecy can be made. In the application of a Constitu­

tion, therefore, our contemplation cannot be only of what

has been, but of what may be. U oder any other rule a

.';..'

RAGHUNATII v. U.0.1. [MOHAN, J.)

Constitution would indeed be as easy of application as it

would be deficient in efficacy and power. Its general

principles

would have little value, and be converted by precedent into impotent and lifeless formulas. Rights

dedared in the words might be lost in reality. And this

bas been recognised. The meaning and vitality of the

Constitution have developed against narrow and restric­

tive construction.• (emphasis supplied)

561

Robert S. Peck in 'The Bill of Rights & the Politics of lnterpMation'

statc:s at page 316-317 as under :

'The Constitution,

then, is not a

beginning nor an end,

but part of a timeless pr0cess. Any constitution "intended

to endure for ages to come' (Mcculloch v. Maryland, 17

U.S. ('~Wheat) 316, 415(1819) cannot be a closed system

or temporally bound. The Constitution is more properly

seen

as part of a stream of history. That stream is not always unbroken and has, frequently, taken radical turns

That it is path has been winding is not surprising, since

history is not a steady and predictable progression'follow­

ing e.lrlier events. Still, constitutional rights must be

viewed as travelling down a single historic stream. Today's

conclusions, to remain principled aad persuasive, need to

relate back to earlier origins. When cases come before the

Courts, purposes and concerns of timeless character re­

quire translation into practical rules that apply to their

most modem manifestations. In this role, courts perform

a mediating function, harmonizing different strands into a

coherent order. But the courts do not eitcrcise an cirdnsive

authority in giving coherence to constitulioul law. Politi..,

cal leaders and political institutions have pla)'Cd this role

as well, advancing both the law and the nw:haniens avail­

able to promote constitutional liberty. 'Great constitution­

al provisions must be administered with caution." Justice

Oliver Wendell Holmes remained us. "Some play must be

allowed for the joints of the machine, and it must be

remembered that legislatures are ultimate guardians of the

h"berties and welfare of the people in quite as great a

A

B

c

D

F

G

H

562

A

B

c

D

E

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

degree as the Courts. (Missouri, Ktlns(IS cl Texas RJy. Co.

v. Moy, 194 U.S. U,7, 270 (1904)).

The Courts are iasalarcd &om the political winds that

buffer, motivate and sometimes disable a legislature. This

independence &om the larger political world is critical to

the successful discharge of the tasks we assign the

judiciary. Nevertheless, the courts operate in a political

world of their own. In this variety of politics, courts must

harmonize past with present, conflict with resolution,

change with continuity. And they must contend with a

variety of interest groups that influence the process by

their actions and by the appeal of their argumenis."

In the words of the famous poet James Russel Lowell :

New occasions teach new duties: Time

makes ancient good uncouth:

They must upward still, and onward, who

would keep abreast of Truth."

No. doubt, unity and integrity of India would constitute the basic

structure

as

laid down in Kesavananda's case (supra) but it is too far

fetched a claim to state that the guarantees and assurances in these Articles

have gone into the process of unification and integration of the country.

One cannot lose sight of the fact thal it was the will of the people and the

F

urge to breathe

free air of independent India as equal citizens that brought

about the merger of these princely states. Therefore, the contention that

the Articles

291 and 362 facilitated the organic unity of India is

unaccep­

table.

G Next as to the violation of Arlicle 14, it is true as laid down in

Bhimsinghji's case (supra) that if a particular provision of a constitution

violates Article 14, it would affect the basic structure of the Constitution.

This case dealt with the validity of Section 27(1) of the Urban Land

(Ceiling and Regulation) Act, 1976. The relevant portion of the judgment

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

' -'I

. '

Vwlalion of

Alt. 14

RAGHUNATII v. U.0.1. [MOHAN, J.)

Per Tulzapurbr, J.

563

"Further, the restriction under Section 27(1) in the

absence of

any

guidelines governing the exercise · of the

power on the competent authority in the matter of granting

A

or refusing to grant the perniission is highly arbitrary,

productive of discriminatory results and, therefore, violates 8

the equality clause of Article 14. Which of the tlu:ee objec­

tives mentioned in the preamble should guide the exercise

of power by the competent authority in. any given case is

not clear and in any case no standard has been laid down

for achieving the objectives of preventing concentration, C

speculation, and profiteering in urban land or urbal) proper·

ty. Because of these reasons the provisions for appeal and

revision under Sections 33 and 34 against the order passed

by the competent authority under Section 27, would also

not -be of much avail to preventing arbitrariness in the D

matter of granting or refusing to grant the permission.

Section 27 is thus ultra >ms and unconstitutional.'

Per Chandrachud, CJ. and Bhagwati, I. (Krishna Iyer, I.,

concuning)

'Sub-section (1) of Section 27 of the Act is invalid insofar

as it imposes a restriction on transfer of any urban or

urbanisable land with a building or a portion only of such

building, which is within the ceiling area. Such property

E

will, therefore, be transferable Without the constrains men- F

tioned

in

sub-section (1) of the Act.' (paras 5,8, &:10)

Per Krishna Iyer, I. (concurring)

"I agree with the learned Chief Justice both regarding

the constitutionality of the legislation and regarding par· G

tia1 invalidation of Section 27(1)."

Per Sen,/.

"Sub-Sections (1), (2) and (3) of Section 23 and the

opening words "subject to the provisions of sub-sections H

564

A

B

c

D

l

E

F

G

H

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

(1), (2) and (3) in Section 23( 4) are ultra vires the Par-

liament and are not protected by Articles 31-B and 31-C

of the Constitution and further, Section 27( 1) is invalid

insofar as it imposes a restriction on transfer of ulban

property for a period of ten years from the commencement

of the Ac4 in relalion to vacant land or building thereon,

within the ceiling limits.'

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

as under:

"The question of basic structure being breached cannot

arise when we examine the vires of an ordinary legislation

as distinguished from a constitutional amendment.

Kesavananda Bharat~ 1973 Supp. SCR cannot be the last

refuge of the Propreitariate when benigh legislation takes

away their 'excess' for societal weal. Nor, indeed,. can every

breach of equality spell disaster as a lethal violalion of the

basic slnlcture. Perioheral inequality is inevitable when

large-scale equalisation processes are put into action. If

all the judges of the Supreme Court in solemn session sit

and deliberate for half a year to produce a legislation for

reducing glaring economic inequality their genius will let

them down if the essay is to avoid even peripheral ine­

qualities. Every large cause claims some martyr, as

sociologists will know. Therefore, what is a betrayal of the

basic feature is not a mere violation of Article 14 but' a

sbocking, uncoascienable or unscrupulous travesty of the

quintessence of equal justice. If a legislation does go that

far it shakes the democratic foundation and must suffer

the death penalty. But to permit the Bharati (supra) ghost

to haunt the corridors of the court brandishing fatal writs

for every feature of ine.quality is judicial paralysatioa of

parliamentary function. Nor can the constitutional fascina­

tion for the -basic structure doctrine be made a trojan­

horse to penetrate the entire legislative camp fighting for

a new social order and to overpower the battle for aboli­

tion of basic poverty by the 'basic structure' missile. Which

is more basic? Eradication of die-bard, deadly and per-

· . ...(_

-./

RAGHUNAlH v. U.0.1. [MOHAN, J.) 565

vasive penury degrading all human rights or upholding of A

the legal luxury of perfect symmetry and absolute equality

attractively presented to preserve the status quo ante? To

use the Constitution to defeat the Constitution cannot fmd

favour with the judiciary ! I have no doubt that the strategy

of using the missile of 'equality' to preserve die-hard,

B

dreadful societal inequality is a stratagem which must be

given short shrift by this Court. The imperatives of equality

and development are impatient for implementation and

judicial scapegoats

must never be offered so that those

responsible for

stalling· economic transformation with a

social justice slant may be identified and exposed of. Part c

IV is a basic goal of the nation and now that the Court

upholds the urban ceiling law, a social audit of the

Executive's implementation a year or two later will bring

to light the gaping gap between verbal velour of the statute

-1

book and the executive slumber of law-in-action. The

D

Court is not the anti-hero in the tragedy of land reform,

urban an~arian.'

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

I

treated alike by the withdrawal of all those privileges. E

The next aspect of the matter is can the Court go into the morality

in withdrawing these assurances and guarantees.

The

following extract from 'Law

and Morality' by Louis Blom-Cooper

F

Gmiin Drewry at page 2 is very useful :

"J'he relationship between law and morals is in effect

quadripartite, but it is only the fourth part that engages

our cunent interest. The first part is an historical and

G

casual question. Has the law been influenced by moral

principles? No one doubts the answer is affirmative; con-

~~

versely law has influenced moral principle. The Suicide

Act, 1961 no doubt accurately reflected the long-standing

DICll'al view that to take one's own life was not a crime

apinst the law, a view which had not always been shared H

566

A

B

c

D

E

F

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

by the judiciary (originally) for reasons having t.o do as

much with property as with theological morality). The

statutory abolition of the crime of suicide in its turn

buttressed and affirmed the moral attitude.

The second part questions whether law necessarily

refers to morality at all; do morals and law overlap in

practice, simply because both share the common

vocabulary of rights and duties? It is here that the natural

lawyers and legal positivists have engaged most fiercely in

controversy. The antagonists have found temporary refuge

in the sterile argumeni about whether law is open to moral

criticism ..

Can a rule of law, 'properly' derived (in constitutional

terms) to be held to conflict with some moral principle?

Those who witnessed Parliament, through the vehicle of

the War Damage Act, 1965 reversing retrospectively the

House of Lords' decision in Burmah Oil Co. Ltd.·v. Lord

Advocate, (1965) AC 75 and thus depriving a large cor­

poration of its fruits of litigation, would acknowledge

readily the dissociation of law and political, if not social,

morality. In any event, does it matter that the law is

immorally enacted, if we are all bound by it? Its enfor­

ceability (if not its actual enforcement) is unlikely to be

affected by such theoretical objections. Perhaps political

morality can be defined only in terms oflhe franchise, and

the efficacy of representative government -though again

the argument rests on a philosophical and psychological,

rather than on an empirical plane.'

Then again, dealing with constraints on Constitutional interpretation.

Kent Greenawalt in 'Conflicts of Law and Morality' 1987 Edition states at

G page as follows :

Impugned

amendment

whether

H moral.

"Like ordinary legislation, constitutional proviS1ons

protecting rights reflect the moral judgments of those who

adopted them, in this case complex judgments that certain

activities shrluld be put beyond the range of control by the

RAGHUNAIB v. U.0.1. [MOHAN, J.)

political branches of the.government. In constitutions, as

in statutes, language may embody a compromise of com­

peting moral claims, though nothing in out federal Con­

stitution resembles the relatively precise accommodation

of the criminal law rules governing use of force in self­

defence. The fact that the Constitution itself represents

.

moral evaluations does not, of course, establish that moral

evaluation is also the task of those who must decide if

statutes and their applications fall a foul of constitutional

restraints.

Widespread agreement

exists on the appropriateness

of

some other techniques of interpretation. The point if

clearest for actions that the language of the Constitution,

the intent of the Framers, and the decisions of earlier

courts

place "sqaurely within the area of constitutional

protection. For these

actions,. a modem court will rarely

need

to engage in any debatable moral evaluation. Usually

it will apply the plain law, perhaps after determining that

no overwhelming argument bas been made contrary to the

indications of these powerful sources. Even for harder

cases, judicial interpretation is not simple moral

evalua­

tion; the implications of the textual language, the Framers'

intent, and the precedents count

for something if they

point in one direction or another.'

567

A

B

c

D

E

To the same effect,

Mic:llacl J. Perry in 'Morality Politics and law"

1988 Edn. states at page 129 as under : F

'According to the view of democracy that underlies

originalism, it is illegitimati: for the judiciary to go beyond

the enforcement of policy choices to the making of policy

choices-at least, it is illegitimate unless the judiciary is

authorised to do so by the legislative and executive branches.

And

it is illegitimate in extremis for the undemocratic

judiciary to oppose

itself, in constitutional cases, to the

dem0cratic branches and agencies of government on the

basis of beliefs

1

ncvcr co~titutionalised by the ratifiers.'

G

H

568 SUPRE~ COURT REPORTS [1993} l S.C.R.

A Therefore, this Court cannot con~m itself with the moral llpCCl of

B

the impugned amendment. The impugned amendment is the will of the

people expressed through Parliament.

In view of the foregoing dilClluion, these pelilions .tte liable to be

dismissed. Accordingly, these pdioqs ·llmld c!M.-iwd .

V.P.R. Petitions dismissed.

-,-