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  i\rllcle 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  

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D  

E  

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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  

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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

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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  

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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 :  

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"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  

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'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  

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D  

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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  

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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  

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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  

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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  

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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  

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CJ.I. in 'The two judgments: Golaknath and Kesavananda Bharrlli' (supra) H

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

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'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 :  

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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 limita- tions."  

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.'  

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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  

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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)  

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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  

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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 :  

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Vwlalion of  Alt. 14  

RAGHUNATII v. U.0.1. [MOHAN, J.)  

Per Tulzapurbr, J.  

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"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  

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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  

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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

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(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-

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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

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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  

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Impugned  amendment  whether  

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"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.'  

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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 1ncvcr co~titutionalised by the ratifiers.'  

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568 SUPRE~ COURT REPORTS [1993} l S.C.R.  

A Therefore, this Court cannot con~m itself with the moral llpCCl of  

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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.  

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