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TMI Blog1970 (12) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 21/14/70-Poll.III Government of India Ministry of Home Affairs New Delhi the 6th September 1970 ORDER In exercise of the power vested in him under Article 366(22) of the Constitution, the President hereby directs that with effect from the date of this Order His Highness Maharajdhiraja Madhav Rao Jiwaji Rao Scindia Bahadur do cease to be recognised as the Ruler of Gwalior. By order and in the name of the President. Sd./- L. P. SINGH Secretary to the Government of India All these orders were notified together in the Gazette of India of September 19, 1970, Part II. They resulted in the forthwith stoppage of the Privy Purses received by the Rulers and the discontinuance of their personal privileges. These writ petitions under Article 32 of the Constitution were filed by some of the Rulers as test cases to question the orders. They ask for a writ, direction or order, declaring the Presidential Order to be unconstitutional, mala fide, ultra vires and void, and for quashing it, a writ, direction or order declaring that the several petitioners continue to be Rulers and thus to be entitled to their respective Privy Purses and personal rights and privileges and a further writ, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... free to accede to any of the two Dominions of India or Pakistan or to continue as independent sovereigns. A reference to the Indian Independence Act, 1947 appears necessary at this stage. The preamble of the Act stated that the Act was to make provision for the setting up in India of two independent Dominions and to provide for matters consequential on or connected with the setting up of those Dominions and-to substitute certain provisions in the Government of India Act 1935. Section 1 of the Act fixed the 15th day of August, 1947 as the appointed ate, from which the two independent Dominions were to come into existence. Section 2 demarcated their territories, but without prejudice to the generality of the provisions of sub-section (3) of that section, the accession of Indian States to either of the two Dominions was not to be prevented. Immediately afterwards the India (Provisional Constitution) Order 1947 was promulgated and certain substitutions were made in the Government of India Act 1935 by the Governor-General by virtue of subsection (2) of Section 8 read with section 9 of the Indian Independence Act. Sections 5 and 6 of the Government of India Act 1935 were replaced by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erences to any persons for the time being exercising the powers of the Ruler of the State whether by reason of the Ruler's minority or for any other reason. (5)In this Act a State which has acceded to the Dominion is referred to as an acceding State and the Instrument by virtue of which a State has so acceded construed together with any supplementary Instrument executed under this section, is referred to as the Instrument of Accession of that State. (6)As soon as may be after an Instrument of Accession or supplementary instrument has been accepted by the Governor-General under this Section, copies of the Instrument and of the Governor-General's acceptance thereof shall be laid before the Dominion Legislature and all courts shall take judicial notice of every such instrument and acceptance. In furtherance of these new provisions, the Instruments of Accession were executed on different dates, after negotiations between the Government of India and the Rulers, but nothing turns upon the date of an Instrument. Many Rulers had immediately signed Instruments of Merger, transferring full and exclusive authority, jurisdiction and powers in relation to the governance of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 18 articles and 4 schedules. This covenant is a detailed document and is reproduced in the White Paper and is also exhibited in the. case before me. It is not necessary to refer to all its terms but. the relevant ones may be noted here. The Covenanting States agreed to unite and integrate their territories into one State with common Executive. Legislature and Judiciary. Room was kept, for other Rulers to join later if they were so minded. The Covenant established a Council of Rulers, with a right to elect a President (to be called the Rajpramukh of the United State) and one Senior Vice-President and two Junior Vice- Presidents. The President and the Senior Vice-President were to hold office during their lifetime and the Junior Vice-Presidents for a term of five years. The Rajpramukh was to be aided and advised by a Council of Ministers to be chosen by him and they were to hold office during his pleasure. July 1, 1948 was fixed for making over the administration of the Covenanting States to the Rajpramukh including a transfer of all assets and liabilities of the State and of the Scheduled Areas. The Rajpramukh had jurisdiction to make laws for the peace and good Government of thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present Rulers of these States and not to their successors for whom provision will be made subsequently. (2)The said amount is intended to cover all the expenses of the Ruler and his family including expenses of his residence, marriages and other ceremonies, etc. and shall subject to the provisions of paragraph (1) neither be increased nor reduced for any reason what- soever. (3)The Rajpramukh shall cause the said amount to be paid to the Ruler in four equal instalments at the beginning of each quarter in advance. (4)The said amount shall be free of all taxes whether imposed by the Government of the United State or by the Government of India. ARTICLE XII (1)The Ruler of each Covenanting State shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of his making over the administration of that State to the Raj Pramukh. (2)He shall furnish to the Raj Pramukh before the first day of August 1948 an inventory of all immovable properties, securities and cash balances held by him as such private property. (3)If any dispute arises as to whether any item of property is the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf and with the authority of the Government of India. Secretary to the Government of India, Ministry of States . Further agreements were devised for each of such other States as might join later and the Government of India concurred in the same way with such agreements. A fresh Instrument of Accession was executed by the Raj- pramukh on behalf of the United State of Madhya Bharat. Special provisions were made for avoiding legislative conflict, and for any future agreement between the Rajpramukh and the Government of India. Such agreements were to form part of the Instrument of Accession. It was however expressly provided by clause 6 as follows : 6. The terms of this Instrument of Accession shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947, unless such amendment is accepted by the Raj Pramukh of the United State by an Instrument supplementary to this Instrument. The Governor-General of India accepted this Instrument of Accession on September 13, 1948. By then 23 Rulers bad joined the United State. On November 24, 1949, on the passing of the Constitution of India, the Rajpramukh issued a Proclamation after a resolution of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly accorded them recognition and guaranteed its provisions. If treated as an Act of State it ended with the recognition. It was also an Act of State on the part of the Rulers who surrendered their lights but the provisions that they evolved for the joint governance of their territories made a constitution proper of which the Courts were to take judicial notice and apply according to their tenor as occasion demanded. From these documents flowed consequences which were binding alike upon the Covenanting States, the United State of Madhya Bharat and the Government of India and the Courts-. None of them could avoid these consequences. The Merger agreements were much simpler documents. As an illustration I may refer to the Bilaspur Merger agreement. It was executed on the 15th August 1948 by the Raja of Bilaspur. It consisted of five articles. By the first article the Raja ceded to the Dominion government full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State, agreeing to transfer the administration on October 12, 1948. By article 2 the Raja was to receive annually a sum of ₹ 70,000/as privy purse free of taxes. The sum included ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll rights and privileges secured by the Agreement to the Nawab would be continued to his successor. The course of historical events is different according to the States emerged in or merely acceded to the Dominion. The merged States were either incorporated in the existing Governor's Provinces or, were administered centrally as Chief Commissioner's Provinces. I am not concerned with these historical events and, therefore, I refrain from saying anything here. The next step in the chain of historical events in regard to Gwalior came with the Constitution which was accepted by the Rajpramukh in his Proclamation. Special provisions were incorporated in the Constitution to which reference may be made here. Four Articles in the Constitution are only relevant and are quoted here. Article 291 was amended by the Constitution (Seventh Amendment) Act, 1956 by deleting clause (2) but is quoted here as it was before the Amendment : 291 (1) Where under any covenant or agreement entered into by the Ruler of any Indian State before the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recognised by the President as the successor of such Ruler; They are intact till today. So also two other Articles, namely, 362 and 363. of these the former does not apply to the State of Jammu and Kashmir, but the latter does. They may be quoted here : 362. 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 (1) of article 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State. 363 (1). Notwithstanding anything in this Constitution but subject to the provisions of article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on came into force, they too became part of the Union of India on a later date. They were Hyderabad, Mysore and Jammu and Kashmir. The Indian States covered about 48 per cent of the area of the Indian Dominion. The population of this area formed 28 per cent of the total population of the Dominion. All the Rulers (including the Rajpramukhs of the Unions) issued proclamations of which reference has earlier been made in relation to Gwalior. On the merger or integration of the States with the Union of India the Rulers were left with a Privy Purse and a few of their personal privileges and properties. The Privy Purses were fixed with due regard to the incomes of the Rulers, before integration with a ceiling of ₹ 10 lakhs. Eleven Rulers were to be paid more than that sum as a personal Privy Purse. The total amount of the Privy Purses came to ₹ 58 crores. Today the highest Privy Purse is ₹ 26 lakhs per annum to the Ruler of Mysore and the lowest is ₹ 192 per annum to the Ruler of Kotodia. The Privileges of the Rulers included many items. A memo- randum on these privileges was issued by the Ministry of States in 1949. it did not contain an exhaustive list but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India acted rapidly. The President in his speech to the Houses gave expression to the policy of Government. A Resolution recommending the abolition was moved and passed in the Rajya Sabha. A Bill was then moved in the Lok 4-L744Sup.CI/71 Sabha intituled. The Constitution (Twenty Fourth Amendment) Bill 1970. It consisted of three clauses and a short statement of Objects and Reasons. 'the Statement read : 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 Privy Purses and Privileges of the Rulers of former Indian States. Hence this Bill. 14-5-1970 Y. B. CHAVAN The Address of the President to the Joint Session of Parliament, the Resolution above referred to and the Statement of Objects and Reasons all gave identical reasons. The Bill was voted upon in the Lok Sabha on September 2, 1970. 332 votes for and 154 votes against it, were cast. It was considered in the Rajya Sabha ,on September 5, 1970 and was defeated, 149 voting for and 75 against it. It failed in the Rajya Sabha to reach the requisite ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Rulers represented one-fourth of what they were previously enjoying. He said that there was nothing by which the Rulers could be forced to merge their States with India and that the Privy Purses were quid pro quo for parting with the ruling power by the Rulers and the dissolution of their States as separate units. He regarded this as a small price for the bloodless revolution and avoidance of mischief. He exhorted the Constituent Assembly that the Indian Peoples on their part should ensure fully the guarantee given to them and concluded: Our failure to do so would be a breach of faith and seriously prejudice the stabilization of the New' Order . The same sentiments were reiterated by Mr. V. P. Menon (who was the Secretary to the Ministry) in his recent book The Story of the Integration of the Indian States ,(1961) pp. 461 and 462. He cataloged the number of villages, palaces, museums, buildings, stables garages, fleets of motor cars, aeroplanes etc. surrendered by the Rulers. He pointed out that cash balances were to the tune of ₹ 77 crores and that palaces in Delhi alone were worth several lakhs of rupees. According to him, the price paid as Privy Purses was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulership was considered outmoded or that some persons held the view that it should not be continued. According to the petitioners the gaddi of a Ruler had to be filled in accordance with the law and custom of the family and could not be left vacant. The vast power to withdraw recognition from all the Rulers at the same time without nominating any successor could not and did not flow from the definition of a Ruler in Article 366(22) which contemplated the Continuance of a Ruler who had signed the Merger Agreement or his successor. The President was thus guilty of a breach of his duties under the Constitution and acted outside his jurisdiction. The act of the President was thus said to offend Articles 53, 394, 295 291 and 362 of the Constitution. In supporting their petition under Article 32, the petitioners claimed that important questions of deprivation of property and of personal liberty were involved. As illustrations the petitioners contended that the right to receive Privy Purses was a right to property of which the Rulers stood deprived as also of other personal properties and benefits of exemptions under diverse laws was also an inroad upon property rights. Since there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eignty and a political act was not questionable in Courts of Law. The bar of Article 363 covered such a case also because there was nothing to show that any recognition carrying with it a Privy Purse and Privileges was ever intended to be perennial even when the State policy demanded an abolition. The Privy Purse itself being-in the nature of a political pension, a claim to it was not property and no claim could arise if it was stopped. Article 291 did not create any legal right but only laid down the source and method of payment of Privy Purse guaranteed by the Dominion of India and even if it were assumed that it was private property or that other property rights were affected by the withdrawal of the recognition, the matter was not justiciable because of the bar of Article 363 which applied to Articles 291 and 362. The pleadings in the case are long but the points are few. The case involves a positive and a negative approach in so far as this Court-is concerned. The positive approach involves the consideration of the reliefs that can be granted and the negative approach the bar operating under Article 363. The first approach requires consideration of the validity of the action o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Nizam of Hyderabad when the latter claimed rights of kingship. It is printed as Appendix I to the White Paper. This is what the Viceroy said The Sovereignty of the British Crown is supreme in India, and therefore no ruler of an Indian State can justifiably claim to negotiate with the British Government on an equal footing. Its supremacy is not based only upon treaties and engagements, but exists independently of them and, quite apart from its prerogative in matters relating to foreign powers and policies, it is the right and duty of the British Government, while scrupulously respecting all treaties and engagements with the Indian States, to preserve peace and good order throughout India. The consequences that follow are so well known, and so clearly apply no less to Your Exalted Highness than to other Rulers, that it seems hardly necessary to point them out. But if illustrations are necessary. I would remind Your Exalted Highness that the Ruler of Hyderabad along with other Rulers received in 1862 a Sanad declaratory of the British Government's desire for the perpetuation of his House and Government, subject to continued loyalty to the Crown : that no succession in the Mas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Crown's authority, would be conditional on the agreement of the States. This was particularly directed against an Indian Government responsible, to the Indian Legislature. To keep the Indian Government away from the States, after the advent of the Government of India Act, 1935 the old political department under the charge of the Governor-General disappeared. Previously the Governor-General's Executive Council had left the States entirely to the Governor- General. The Act of 1935 formed the basis of a personal relationship between the States and the rest of India. This meant a reversal of the policy and the British Indian Executive was slowly deprived of all constitutional status vis-a-vis the States. A Crown Representative was introduced as the link between the States and British India. The Government of India Act 1935 had visualised a federation between British India and the Indian States but that scheme did not materialise. The Indian States were anxious to create sovereign States but the Crown prerogatives in respect of them continued. Lord Linlithgow's declaration promised no commitment about the States without their consent in any future constitution that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which the British were paramount but because they were paramount, therefore, they had paramountcy rights. When paramountcy lapsed it did not fall on the shoulders of Indian Government. The right to recognise a Ruler from out of several claimants was not an act of paramountcy. The selection had to be in accordance with law and custom. It was not the arbitrary power which made the conferral of Rulership a gift from the Crown. There is no provision to that effect in the Constitution or even the Covenants and Agreements. That the Constitution gave the right to the President to recognise a Ruler for the time being, is apparent enough but it cannot be stretched to give a paramountcy of the same character as that enjoyed by the British crown. To claim such a parmountcy one has to ignore completely the arrangements by which the Rulers parted with their territories and Ruling rights and were assured of their Privy Purses and privileges. These rights became constitutionally protected rights which so long as the Ruler's line was not extinct belonged to the Ruler for the time being. In one sentence when the guarantees were given by the Constitution, paramountcy, if any, went out. If it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ton L. J. Salaman v. Secretary of State for India() [1966] I K.B. 613 at 640) as 'a catastrophic change constituting a new departure', in the State of Saurashtra v. Menon Haji Ismail([1960] I S.C.R. 537 at 544). I have not been able to better that expression. I further pointed out that 'in civil commotion or even in war or peace, the State cannot act 'catastrophically' outside the ordinary law and there is legal remedy for its wrongful 'acts against its own subjects or even a friendly alien within the State . I may again reaffirm the observations in that case 'based upon the statement of the law by Lord Kingsdown in Secretary of State in Council for India v. Kamachee Boyl Sabha ([1859] 13 Moore P.C. 22). This is what I Said: The question thus ,Is always : Did the State or its agents purport to act catastrophically' or subject to the ordinary course of the Law? This question was posed in Secretary of State in Council for India v. Kamachee Boye Sahaba by Lord Kingsdown in these words : What was the real character of the act done in this case? Was it a seizure by arbitrary power on behalf of the Crown of Great Britain, of the dominations and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... national Law formerly held the field that persons holding such rights are incapable of asserting them in the international sphere or in the Municipal Courts. The instrument may make them owners of rights and yet take away the remedy from them. This is the sense in which Tindal C.J. used the phrase 'lacking in vinculum jurists This position has now altered and there is a rethinking on the subject. It is now gradually gaining recognition that if there be 'some municipal legislation giving enforceability to the right, then the right can be claimed in a Municipal Court. This change of view followed the Advisory Opinion of the Permanent Court of International Justice in the jurisdiction of the Courts of Danzing in the matter of Railway officials in Danzing. (I) The rights given by a treaty received a broader acceptance there. This case gave an exposition of the. rights of individuals in the international sphere and the Municipal Courts. The argument of Poland in the case was that the agreement between Poland and Danzing regulating the conditions of employment of the Railway officials taken over in Railway Service, created rights only between Poland and Danzing and as that agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In so far as those guarantees became a part of our Constitution and were included in various statutes passed by Parliament such as the Income-,tax Act, the Wealth-tax Act etc., they would be enforceable according to the tenor of the Constitution ,and the other laws (subject of course to such bar. as the Constitution creates by Article 363). Then no question of an 'act of,State' or of 'imperfect obligations' arises. To sustain the President act repudiating the rights and obligations on the basis of a discarded theory of 'imperfect obligations' would drain the constitution and the. laws of their efficacy by an executive act without amendment of the Constitution or the laws and that cannot be permitted. This is not a right for enforcement in foro Conscientiae to make good, or of which the performance could only be sught for by petition, memorial or remonstrance. This is a ,case for an action in a Court of Law if the dispute is not barred by the Constitution itself. Therefore there is no bar to the jurisdiction of this Court except that created by Article 363. The ambit of that bar will be worked out by me on the terms of that article later but before that b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithdrawing the recognition of the Princes has acted ultra vires the Constitution. Under Article 73 the Executive power of the Union is co-terminous with the law making power of Parliament. When Parliament refused to amend the Constitution, the President's power did not extend that far by executive action. By his executive act the President has denuded articles 291 and 362 of their content for ever. The President was required to recognise the Rulers and has with one stroke withdrawn the recognition. He is trying to do indirectly what Parliament refused to dot directly that is to say remove articles 291,362 and 366(22) from the Constitution. This has, been done without a hearing to the Rulers and is in breach of accepted principles of natural justice. The rule of law prevails and no unconstitutional act of any authority, unsupported by law, can avail(1). The action is not only against the Constitution but it also affects a large body of tax and other concessions. Prominent among them are Wealth Tax Act 1957 Ss.2(p) and 5(1)(iii), Gift Tax Act 1958 S. 5(1)(xiv), Hindu Succession Act, 1956 S. 5(iii), Income- tax Act 1922 Section 4(3) (x); Income-tax Act 1961 S. 10(19), Estate Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a Ruler is implicit just as much as the power to withdraw recognition in suitable cases. The Union Government cannot escape this obligation by invoking paramountcy or some state policy. The obligation to recognise a Ruler is bound up with the other guarantees contained in articles 291 and 362. The definition in article 366(22) is merely the key to find a particular Ruler. The withdrawal of recognition from all the Rulers renders the guarantees as also the relevant articles of the Constitution inoperative. It could never be the intention of the Constitution that by an Executive act the operation of those articles would come to a stop. The action of the President has the indirect effect not only of abrogating these articles but also of rendering certain provisions in the Income-tax Act, Wealth Tax Act, the Gift Tax Act, the Codes of Civil and Criminal Procedures etc., completely otiose. Executive action can never be allowed to have that effect unless the power is explicitly conferred. The intention of Article 366(22) is exactly the converse of what the Union Government understands it to be. The answer of the first question is that the power of the President was wholly outside Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only with the Privy Purses, the stoppage of which is the direct consequence of the order withdrawing recognition. A preliminary point arises under article 19 whether the Rulers can be regarded as citizens. I have assumed this so far as I cannot see how otherwise they can be described. In H.H. the Maharana Sahib Shri Bhagwat Singh Bahadur of Udaipur v. The State of Rajasthan([1954] 5 S.C.R. 1, at page 6) it is laid down that The appellant has also, since the Constitution, been a citizen of India, and his recognition as Ruler under Art. 366(22) of the Constitution has not altered his status, but as a citizen he is undoubtedly assured a privileged position. Therefore, the matter can be considered both under Article 1 9 and Article 3 1. In two cases of the Court Madhaorao Phalka v. State of Madhya Bharat([1961] 1 S.C.R. 957) and State of Madhya Pradesh v. Ranajirao Shinde and Anr.( [1968] 3 S.C.R. 489) pensions and cash grants were regarded as property. The reason for the decision is not as fully given as the importance of the subject required and, therefore, I permit myself to say a few words here. I shall show later that the obligation to pay the Privy Purse to a Ruler is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly difference is in the mode of enjoyment. The creditor realizes this ownership by compelling the debtor to perform his obligation. As illustration he gives a catalogue of passive 'rights of ownership. Anson (Principles of Law Contract) supports him by pointing out that an obligation is a right of control exercisable by one person over others for acts which have a money value. The dynamic theory of obligations regards a debt as a claim to 'an equivalent in a value to a floating charge against the generality of things which are the properties of the debtor'. From this is developed the notion of a credit-debt where property rights arise from a promise, express or implied in respect of ascertained or readily ascertained sums of money. Thus a debt or a liability to pay money passes through four stages. First there is a debt not 'yet due. The debt has not yet become a part of the obligor's 'things' because no net liability has yet arisen. The second stage is when the liability may have arisen but is not either ascertained or admitted. Here again the amount due has not become a part of the obligor's things. The third stage is reached when the liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment obligatory. The words when expanded read 'shall be charged on and shall be paid out of etc'. the direction to pay is in no uncertain terms. The article is thus self-ordaining. The recipient is mentioned in (b) where the Article says 'and the sums so paid to any Ruler' and this shows who is to be paid. Therefore, the article in addition to the source and manner also lays down that it shall be paid and paid free of taxes on income to the Ruler. The Article thus not only creates a liability but also a right in the Ruler. It is self-supporting and self- ordaining. The learned Attorney-General contends that even accepting all this as a valid construction of the article 291 of the Constitution, the petitioners must fail because they are seeking either to enforce the Covenants and Agreements or on seeking to enforce a provision of the Constitution relating to such Covenants and Agreements. The same argument is also raised in respect of articles 362 and 366(22). According to him the petitioners stand excludedby Article 363. This is the crux of the case before us. The answer to this question depends on the meaning to be attributed to the four article in questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inued in operation after such commencement'. This shows that a dispute relating to the enforcement, interpretation or breach of any treaty etc. is barred from the Courts' jurisdiction. The words 'arising out of the provisions, of a treaty etc.' limit the words. Thus if a treaty, covenant etc. is characterised as forged by any party, that would not be a dispute ,arising out of any provision of a treaty, covenant etc.. That dispute would be whether there is a genuine treaty or not. This illustration is given by me to show that the exclusion is not all-embracing. The dispute to be barred must be arise from a provision of the treaty etc. The second part .bars the Courts' jurisdiction 'in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty etc.' Here the dispute must be in respect of a right which accrues under a provision of the Constitution or the liability or obligation must arise similarly from a provision. The words 'provisions of this Constitution' are not left unqualified. They could not be left unqualified for then the latter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is the dominant purpose and theme which alone determines the quality of the provision. I shall now apply this test to article 291,362 and 366(22) beginning with article 362 since to my mind it is the plainest of all and is definitely within the description. It provide directly for the enforcement of guarantees and assurances by requiring Parliament, the Legislatures and the Executive Governments of the Union and the States to have 'due regard' for those guarantees and assurances. The article can only be used to support a claim to rights, privileges and dignities. Its dominant theme is the rights, privileges and dignities of the Rulers under Covenants and Agreements and therefore, the provision is 'relating to' Covenants and Agreements. The reference to Article, 291 does not influence the application of the test to Article 291 because that is merely a legislative device and does not tie the two Articles together. It only saves repetition of certain phrases already used in Article 291. If Article 362 were earlier in the Constitution the phrase would have occurred in it and would have been referred to in the other article. Therefore no conclusion can be drawn fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resident would never do so. But who would have thought in 1950 that recognition of. all the Rulers would be withdrawn by a single order? Therefore, extreme examples are necessary to solve extreme cases. I have questioned the action of the President because the bar of Article 363 does not operate. Neither is the recognition of an original signatory of a Covenant or Agreement involved, nor the recognition of a successor. The act is not even one which the Court leaves alone because the dis- cretion is exercised in a manner and to the extent a President in the proper discharge of his functions can go. What is done is to take away recognition from all Rulers and as such power does not flow from Article 366(22), the bar of Article 363 does not apply to such a dispute. It arises neither from the Covenants etc. nor from the ,provisions of the Constitution. It ceases to have the protection of Article 363. Article 363 immediately follows Article 362. Although not much significance can be attached to the collocation of the articles, it is to be noticed that the exclusionary article wants us to search for a provision relating to a treaty etc. before staying our hands. It does leave the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Attorney-General that it indicates only the source and manner of payment rather destroys the case for the application of article 363 than lends support to it. The mention therein of Covenants and Agreements is for its own purpose so that the amounts need not be specified. In this connection there is no difference between Art. 290A and 291 although the learned Attorney-General made much of the mention of the name of the Travancore Devasom Fund in the former and absence of the names of the Rulers in the latter, or again the mention of a specific sum in the former and no sum in the latter. The article is self sustaining and self- ordaining. Its purpose is not relating to Covenants etc. but to something else. Article 291 differs from Articles 362 and 366(22) in this that the Privy Purses have already been settled and one has not to enforce the Covenants at all. One does not enforce the Covenants but the mandate of the Article itself. Whenever the Privy Purse is modified under the terms of a Covenant, the Article is again invoked- ab extra. That dispute isnot related to Article 291 and the bar of Article 363 operates. That matter is outside the jurisdiction of Courts. It is only w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esident cannot claim a total immunity for his acts from the scrutiny of the Court. Neither the paramountcy of the Grand Moghul who could give Subehdarships to his Generals as he pleased nor the paramountcy of the British Crown has descended to him. This eorror is further enhanced by too facile a reading of Article 363. Any tenuous connection between an Article and the Covenant or Agreement, how-ever remote, is not to be considered sufficient to make a provision fall within the description in the latter part of Article 363. Due, regard was not paid to the fact that the draftman would have re- ferred to numbers of Articles if the disputes of every kind under those article stood excluded. The learned Attorney-General relied in particular on some cases which he said had laid down that the act of recognition is a political act, that it cannot be questioned before a Court of' Law. He also referred to cases in which the question of the application of article 363 had arisen. My brother Hegde in his judgment has sufficiently considered them and I am in such agreement with him that I find it unnecessary to repeat what he has said' there. I adopt his reasoning. In conclusion I h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v Rao-petitioner herein-as the Ruler of Gwalior. Under the Madhya Bharat Gangajali Fund Trust Act, 1954, enacted by the State Legislature the Ruler of the State of Gwalior is one of the three trustees authorised to manage the Gangajali Fund settled by the State and to apply the income thereof for charitable purposes. On September 2, 1970, a Bill intituled the Constitution. (Twenty fourth Amendment) Bill, 1970, and providing that . Articles 291 and 362 of the Constitution and clause (22) of Article 366 shall be omitted - was introduced in the Lok Sabha. The Bill was declared passed with the amendment that the provisions thereof shall come into oporeation with effect from October 15, 1970. On September 5, 1970, the motion for consideration of the Bill did not obtain, in the Rajya Sabha, the requisite majority of not less than two- thirds of the Members present and voting as required by Art. 368 of the Constitution. The motion for introduction of the Bill was declared lost. A few hours there-after the President of India purporting to exercise power under clause (22) of Art. 366 of the Constitution signed an instruments withdrawing recognition of all the Rulers. A communication t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner under Arts. 14, and 19 and 31 of the Constitution were infringed. The petition was later amended with leave of the Court and it was claimed that the order infringed the guarantee under Art. 21 of the Constitution also. The Union of India by their affidavit contended, inter alia, that the petition was not maintainable because the source of the right to receive the privy purse and to be accorded the privileges ,claimed was a political agrement and the privy purse was in the nature of a political pension; that Art. 291 did not impose any obligation upon the Union to pay the privy purse; that Arts. 291 and 362 of the Constitution did not in-vest the petitioner and the other Rulers with any enforceable rights; that recognition of the Rulers under Art. 366(22) was a matter of State policy and the President was competent to pass the order dated September 6, 1970; that the order was not made for a collateral purpose as alleged; and that by the order the guarantee of Arts. 14, 19(1)(f), 31(1) or any other article of the Constitution was not infringed. By the order of-the President withdrawing his recognition as Ruler, the petitioner is denied the right to the privy purse an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (22) 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 recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler. Clause (15) of Art. 366 defines an Indian State as meaning any territory which the Government of the Dominion of India recognised as such a State'.- Article 291, as amended by the Constitution (Seventh Amendment) Act, 1956, reads as follows: Where under any covenant or agreement entered in by the Ruler of any Indian State before the 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, an paid out of, the Consolidated Fund of India; and (b) the sums so paid to the Ruler shall be exemept from all taxes on income. The definition of Ruler in cl. (22) of Art. 366 is in two parts : a person is a Ruler if he being ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercises political power which is a sovereign power and that after an order of de-recognition no erstwhile Ruler can make a claim in respect of the Rulership or the privy purse or any of the privileges' since the relevant covenants under which the rights of the Rulers were recognised were political agreements and the rights and obligations thereunder were liable to be varied or repudiated in accordance with State policy in the interests of the people also receives no countenance from our Constitution. The first branch of the argument is inconsistent with the basic concept under our Constitution of division of State functions; the second is inconsistent with the history of events between 1947 and 1949, and the third receives, for reasons to be presently stated, no support from the. relevant constitutional provisions. Whether the Parliament may by a constitutional amendment abolish the rights and privileges accorded to the Rulers is not, and cannot be, debated in this petition, for no such constitutional amendment has been made. The petitioner challenges the authority of the President by an order purporting to be made under Art. 366(22) to withdraw recognition of Rulers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to be varied or repudiated in accordance with State policy . Power of the President to determine the status of the Rulers by cancelling,or withdrawing recognition to effectuate the policy of the Government to abolish the concept of Rulership is therefore liable to be challenged in these petitions. The circumstances in which the constitutional provisions under cls. (15) and (22) of Art. 366, and Arts. 291 and 362 were incorporated may be briefly set out. In the era before 1947 the term State applied to a political community occupying a territory in India of defined boundaries and, subject to a single Ruler who enjoyed or exercised, as belonging to him, any of the functions and attributes of internal sovereignty duly recognised by the British Crown. There were-, in India more than 560 States : forty out of those States had treaty relations with the Paramount Power : a larger number of States had some form of engagements or sanads, and the remaining enjoyed in one or the other form 'recognition of their status by the British Crown. The treaties, engagements and sanads covered a wide field, and the rights and obligations of the States arising out of those agreements vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istan were set up as from August 15, 1947, and s. 7 of the Act provided : (1) As from the appointed day- (a) His Majesty's Government in the United Kingdom have no responsibility as respects the government of any of the territories which, immediately before that day, were included in British India; (b) the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States, all obligations of His Majesty at that, date, towards Indian States or the rulers thereof and all powers, rights, authority or jurisdic- tion exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, suffrance or other-wise; and Provided that, notwithstanding anything in paragraph (b) or paragraph (c) of the sub- section, effect shall, as nearly as may be continued to be given to the provisions of any such agreement as is therein referred to which relate to Customs, transit and communications, posts and telegraphs, or other like matters, until the provisions in question are denounced by the ruler of the Indian State or person ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition of accession by the States concerned, were also entered into between the Dominion Government and the acceding States. The Standstill Agreements recited : Whereas it is to the benefit and advantage of the Dominion of India as well as of the Indian States that existing agreements and administrative arrangements in the matters of common concern, should continue for the time being between the Dominion of India or any part thereof and the Indian States : Now therefore it is agreed between the State and the Dominion of India that:- 1. (1) Until new agreements in this behalf are made, all agreements and administrative arrangements as to matters of common concern now existing between the Crown and any Indian State shall, insofar as may be appropriate, continue as between the Dominion of India, or, as the case may be, the part thereof, and the State. (2) In particular, and without derogation from the generality of sub-clause (1) of this clause the matters referred to above shall include the matters specified in the Schedule to this Agreement. 3.Nothing in this agreement includes the exercise of any paramountcy functions. By the instruments of accession the Princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of privy purses. These instruments were concurred in and guaranteed by the Government of the Dominion of India. The next phase was of assimilation and consolidation of the unity achieved till then. In the case of the Provincially merged and Centrally administered States, authority for exercising the powers of administration and legislation originally derived from the Extra-Provincial, Jurisdiction Act, 1947, was later exercisable by virtue of orders issued under ss. 290A and 290B incorporated in the Government of India Act, 1935, with effect from January 15, 1949. By an order issued under S. 290A diverse steps were taken for integration of the former State into the Provinces. TO ensure an organic unity of India, the Princes were invited to accede to the Dominion, and later to integrate with India under a Constitution with a Republican form of Government. The Princes, some out of patriotism and others from motives of selfinterest, agreed to merge their territories and to abandon all authority in regard to their territories in consideration of certain special concessions. To give constitutional sanction to the merger agreements, special provisions were expressly incorpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solemn undertakings intending the arrangements to be temporary, and liable to be set at naught by the unilateral act of the Union of India, must be rejected. In form Art. 366(22) is a definition clause : It however in- vests the President with authority to recognize a person as a Ruler. Granting that under Art. 366(22) the President may withdraw the recognition of a person as a Ruler, the power to nullify important provisions of the Constitution does not flow from that clause. The plea raised by the Attorney-General that recognition of Rulership was a gift of the President or was in the gift of the President is not borne out by the position of and the nature of the powers and functions of the President under our constitutional scheme. President is made by the Constitution repository of the power to recognise the Rulers. That power may be, exercised consistently with and in aid of the constitutional scheme. A democratic Constitution founded in the Rule of Law does not envisage authority in any instrumentality of the Union reminiscent of autocracy. The power to recognise a Ruler may be exercised in the case of first recognition only in favour of a person who has signed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain the constitutional institution, the constitutional provisions, the constitutional scheme, and the sanctity of solemn agreements entered into by the predecessor of the Union Government which are accepted, recognised and incorporated in the Constitution. 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. Clause (22) of Art. 366 is intended to invest the President with authority to recognise Rulers : see Kunvar Shri Vir Rajendra Singh v. Union of India([1970] 2 S.C.R. 631). The clause incorporates the history of momentous events which took place in India between 1947 and 1949 leaving a lasting impression upon our national and constitutional structure. Articles 291, 362 and Part VII of the Constitution were when incorporated intended to grant recognition to the solemn promises on the strength of which the former Princes were invited by those at the helm of affairs to join the experiment for achieving for the millions their dream of securing a truly democratic form of Government in a united independent India, and clauses (15) (22) of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptance of the new Constitution of India. These commitments had to be borne in mind when the States Ministry approached the Rulers for the integration of their States. 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. The minimum which we could offer to them as quid pro quo for parting with their ruling powers was to guarantee to them privy purses and certain privileges on a reasonable and defined basis. The privy purse settlements are therefore in the nature of consideration for the surrender by the Rulers of all their ruling powers and also for the dissolution of the States as separate units The Rulers have now discharged their part of the obligations by transferring all ruling powers and by agreeing to the 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 stabilisation of the new order. In the larger interest of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme. The power to specify may carry with it the, power to withdraw specification, but it is coupled with,, a duty to specify in a manner which makes the constitutional provisions operative. Article 366(21) before it was deleted by the Constitution (Seventh Amendment) Act, 1956, defined Rajpramukh as mean- ing :- (a)in relation to the State of Hyderabad, the person who for the time being is recognised by the President as the Nizam of Hyderabad; (b)in relation to the State of Jammu and Kashmir, or the State of Mysore, the person who for the time being is recognized by the President as the Maharaja of that State; and (c)in relation to any other State specified in Part B of the First Schedule, the person who for the time being is recognised by the President as the Rajpramukh of that State, and includes in relation to any of the said States any person for the time being recognised by the President as competent to exercise the powers of the Rajpramukh in relation to that State; The first two clauses contemplated recognition of the Nizam of Hyderabad and the Maharajas of Jammu Kashmir and of Mysore to be the Rajpramukh. There can be no dispute that the Ruler of Hyde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -(a) sums required to meet expenditure charged upon the Consolidated Fund of India; and (b) sums required to meet other expenditure proposed to be made from the Consolidated Fund of India. Clause. (3) of Art. 112 categorizes heads of expenditure charged on the Consolidated Fund of India. So much of the estimates as relate to expenditure charged upon the Consolidated Fund are by Art. 113(1) open to discussion in, but not to be submitted to the vote of the Houses of Parliament. After demands in respect of sums required to meet other expenditure have been made and assented to by the House of the People, a Bill is introduced to provide for appropriation out of the Consolidated Fund of India of all moneys required to meet the expenditure charged on the Consolidated Fund of India and the grants : Art. 114(1). No amendment may be proposed in either House to vary the amounts or to alter the destination of the grant or the expenditure charged. In support of his contention that by using the expression charged in Arts. 291 and II 2(2) it is only intended to enact that the expenditure is not subject to the vote of the Parliament and that no priority in payment in respect of expenditure is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequence of priorities. But that does not alter the fundamental character of a charge that it specifies a fund out of which satisfaction of the expenditure charged must be made, and the prescribed expenditure shall have priority in payment to the person for whose benefit the expenditure is charged on the Fund. The constitutional obligation to proceed in the manner set out in Arts. 112, 113 114 imposed upon the President and the Parliament implies a right in the person or persons in respect of whom the expenditure is to be incurred. That view is supported by other provisions in the Constitution. The expression shall be charged on and paid out of the Consolidated Fund is used in Arts. 290, 290A and 291. Articles 290 and 291 do not expressly designate the payee : Art. 290A designates the payee. Article 273 merely uses the expression shall be charged in dealing with the grants-in-aid to the States of Assam, Bihar, Orissa and West Bengal, without Any direction for payment. Article 275(1) deals with grants-in-aid to the revenues of such States as the Parliament may determine: it is only the provisions dealing with the capital and recurring sums which refer-to the obligation to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive States. The Government of India concurred in and guaranteed payment of the amount of the privy purse under the terms of the agreements constituting the Unions. By the States Merger (Governors' Provinces) Order, 1949, this liability was imposed upon the Provinces when the States merged with those Provinces. In the case of a Union of States the liability to pay the privy purse to a head of State lay upon the Union of States to be discharged out of the revenues of the State. In the case of Centrally merged States the Dominion Government had to pay the privy purse out of the revenues of the State. Even after the integration of States, the obligations under the covenants were to be met out of the revenues of the respective States. The covenants and the various stages through which ultimate integration was achieved probably remained acts of State. The rights and obligation accruing or arising under those acts of State could be enforced only if the Union of India accepted those rights and obligations. After the Constitution the obligation to pay the privy purse rested upon the Union of India, not because it was inherited from the Dominion of India; but because of the constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation arising by virtue of Art. 291. In that case a company which had entered into an agreement with the State of Gwalior in 1947, whereby the State of Gwalior granted exemption from liability to taxation of certain industries started in the State, claimed to enforce that right against the Union of India after integration of the State. This Court held that by virtue of the agreement the Central Legislature was not deprived of its legislative power to impose taxes, and on that account after the extension of the Income-tax Act, 1922, the exemption granted under the agree- ment of 1947 must fall and that the Company was entitled only to such concessions as may be provided by the State law applicable thereto after the integration. The structure of Art. 362 is somewhat different. That Article imposes restrictions upon the exercise of legislative and executive functions. Recognition of the personal rights and privileges of the Rulers arising out of the covenants is not explicit, but the, injunction that in the exercise of legislative and executive power due regard shall be had to the guarantees, clearly implies acceptance and recognition of the personal rights, privileges and digni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utes in respect of the obligations of the Union, it is declared that the Courts have no jurisdiction in respect of the two classes of disputes. The exception carved out of the exclusion in respect of the jurisdiction conferred upon this Court by Art. 143 is not a real exception for the jurisdiction of this Court under Art. 143 is merely advisory. The non- obstante clause however does not enlarge the field of exclusion of judicial authority. The Attorney-General urged that the jurisdiction of the Courts to enforce rights and obligations arising out of the covenants entered into by the Rulers to which the Government of the Dominion or the predecessor Governments were par- ties, was excluded, because the rights and obligations arose out of acts of State, and by constitutional provision that exclusion was affirmed and extended after the Constitution. An act of State need not, it is true, arise out of war or conquest : It may be the result of an agreement, and the terms of the agreements and the obligations flowing only from such agreements may not be enforced in the Municipal Courts of either State, unless the rights and obligations are recognized and accepted by the States, or unle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest to legislate and exercise executive authority, the Princes had sovereignty within their territories. With the advent of the Constitution the States ceased to exist, and the Princes and Chiefs who were recognized as Rulers were left with no sovereign authority in them. It is difficult to conceive of the government of a democratic Republic exercising against its citizens paramountcy claimed to be inherited from an Imperial Power. The power and authority which the Union may exercise against its citizens and even aliens spring from and are strictly circumscribed by the Constitution. The fundamentals on which paramountcy rested-i.e. the compulsion of geography and the essentials for ensuring security and special responsibility of the Government of India to protect all territories in India survived the enactment of the Indian Independence Act, for between August 15, 1947 and the date of integration, of the various States, the Government of India was the only fully sovereign authority. But paramountcy with its brazen-faced autocracy no longer survived the enactment of the Constitution. Under our Constitution an action not authorised by law against the citizens of the Union can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts for determination of his rights. The Court will interpret a statute as far as possible, agreeably to justice and reason and that in case of two or more interpretations, one which is more reasonable and just will be adopted, for there is always a presumption against the law maker intending injustice and unreason. The Court will avoid imputing_to the Legislature an intention to enact a provision which flouts notions of justice and norms of fairplay, unless a contrary intention is manifest from words plain and unambiguous. A provision in a statute will not be construed to defeat its manifest purpose and general values which animate its,, structure. In an avowedly democratic polity, statutory provisions ensuring the security of fundamental human rights including the right to property will, unless the contrary mandate be precise and unqualified, be construed liberally so as to uphold the right. These rules apply to the interpretation of constitutional and statutory provisions alike. Article 366(22) defines a Ruler as a Prince, Chief or other person who has entered into a covenant or agreement as is referred to in Art. 291, and is recognized for the time being by the President a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng out of any covenant under the firm limb of Art. 363, merely because the order or the measure violates the rights of the citizen which, but for the act or measure, were not in question. The dispute in such a case relates to the validity of the act or the vires of the measure. Exclusion of the Court's jurisdiction by the terms of the relevant words in the second limb lies in a narrow field. If the constitutional provision relating to a covenant is the source of the right claimed to accrue, or liability claimed to arise, then clearly under the second limb the jurisdiction of the Court to entertain a dispute arising with respect to the right or obligation is barred. We need in the present case express no opinion on the question whether a dispute that an executive act or legislative measure operating upon a right accruing or liability arising out of a provision is invalid falls within the second limb of Art. 363. As a quid pro quo for agreeing to surrender their power and authority, it was enacted in the Constitution that the Princes who had signed the covenant of the nature specified will be recognized as Rulers. But under the treaties, covenants and agreements executed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese cases the question about the bar to the Court's jurisdiction by virtue of Art. 363 was directly in issue. In Nawab Usman Ali Khan's case (supra) this Court upheld the claim that the privy purse payable to the Ruler of Jaora was exempt from attachment under s. 60 (1) (g) of the Code of Civil Procedure. The Court in that case considered the nature of the privy purse and held that it was a political pension within the meaning of s. 60(1) (g) of the Code of Civil Procedure. Bachawat, J., speaking for the Court, after setting out the history of integration and absorption of States, summarised the provisions of Arts. 291, 362, 363 and 366(22) of the Constitution and observed (at p. 208): Now, the Covenant entered into by the Rulers of Madhya Bharat States was a treaty entered into by the Rulers of independent States by which they gave up their sovereignty over 'their respective territories and vested it in the new United 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 contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. In the view we have expressed, the argument raised by Mr. Palkhivala that even if cl. (22) of Art. 366 is a provision relating to the covenants, the jurisdiction of this Court under Art. 32 to grant relief against an invalid exercise of power withdrawing recognition of the Rulers is not barred, needs no consideration. The source of the right to receive the privy purse is for reasons already stated the constitutional mandate : it is not in the covenant. Reference to the covenant in Art. 291 merely identifies the sum payable as privy purse : it does not make Art. 291 a provision relating to the covenant. 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 Art. 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. The personal rights (other than the right to the privy purse) privileges and dignities are recognized by Art. 362 of the Constitution and the Legislature and the executive are enjoined to have due regard to those personal rights, privileges and dignities, in exercising their respective power. Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... President on September 6, 1970 do-recognising the Rulers is illegal and on that account inoperative, and the petitioner will be entitled to all his preexisting rights and privileges including the right to the privy purse, as if the order had not been made. The petitioner will get his costs of the petition. Writ petitions Nos. 377 to 383 of 1970 raise the identical question which is raised in the main petition. For reasons set out in the principal petition a similar writ will issue. Each petitioner will get his costs of the petition. One hearing fee in those, petitions in which the petitioners have appeared through the same counsel. Mitter, J. On the 6th September, 1970 there was issued in the name of the President an order of the following text : In exercise of the powers vested in him under Art. 366 (22) of the Constitution of India, the President hereby directs with effect from the date of this order His Highness Maharajadhi Raj Madhav Rao Jiwaji Rao Scindia Bahadur do cease to be recoginised as a Ruler of Gwalior. Admittedly this followed the signing of an instrument by the President on the night of 5th September 1970 purporting to withdraw recognition of all the Ruler ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Art. 366 which is a key to the meaning of various words and expressions used throughout the Constitution. Clause 22 of the article provides In this Constitution unless the context otherwise, requires, the following expressions have the meaning hereby respectively assigned to them, that is to say- (22) 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 recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler; Clause (15) of Art. 366 defines an Indian State as any territory which the Government of the Dominion of India recognised as such a State Clause (21) of Art. 366 (now deleted) provided as follows :-- Rajpramukh means- (a)in relation to the state of Hyderabad the person who for the time being is recognised by the President as the Nizam of Hyderabad; (b)in relation to the State of Jammu and Kashmir or the State of Mysore, the person who for the time being is recognised by the President as the Mah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iming at no more than securing for the Company a privileged position in trade against its rivals. For the first time the Parliament of England asserted its authority and control over the East India Company's activities both in. India and in England by the Regulating Act of 1773, under which the Governor of Bengal became the Governor-General in Council with a certain amount of control over the Presidencies of Bombay and Madras. The Marquis of Wellesley as the Governor-General felt convinced when he came to India in 1798 and saw the state of affairs here that the British must become the one paramount power in the country. He set up a system under which no Indian State which had accepted subsidiary alliance with the British could make any war or carry on negotiations with another State without the Company's knowledge and consent. It was during his time. that the British Dominion in India expanded considerably. He had practically eliminated the French influence in India and brought many States under the subsidiary alliance, the notable instances being Hyderabad, Travancore, Mysore, Baroda and Gwalior. Under this system of subsidiary alliance the bigger states were to maintain a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... policy to its next logical step by recommending that the integrity of the States should be preserved by perpetuating the rule of the Princes whose power to adopt heirs should be recognised. The Secretary of State for India agreed to this recommendation and sanads were granted to the Ruler under which in the event of the failure of the natural heirs, they were authorised to adopt their successors according to their law and custom. These sands were intended to remove mistrust and suspicion and knit the Native Sovereigns to the paramount power. The new policy was to punish the ruler for extreme misgovernment and if necessary to depose him but not to annex his State for misdeeds. The Indian States thus became part and parcel of the British Empire in India. In The words of Lord Canning : The territories under the sovereignty of the Crown became at once as important and as integral a part of India as territories under its direct domination. Together they form one direct care and the political system which the Moghuls had not completed and the Maharattas never contemplated is now an established fact of history. The next five decades were occupied with the task of evolving a machi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t but as a gift from the paramount power. A definite pattern of the Government of India's relationship with the States had been developed b the time the first world War broke out in 1914. The Rulers rallied to fight for the Empire, and the organisation of the war effort involved closer coordination of administrative activity in the States as well as in the Provinces. Throughout the country the tide of national aspirations was rising fast. Although Britain claimed to be fighting a war to defend freedom and democracy the system of government by which she continued to hold India in imperial thrall was clearly at variance with her professed aims. The British Government recognised that the situation needed now handling. In 1917 Montagu, the Secretary of State for India, announced that the policy of His Majesty's Government with which the Government of India was in complete accord, was that of an increasing association of Indians in every branch of the administration and the gradual development of self-governing institutions with a view to progressive realisation of responsible government in India as an integral part of the British Empire. The Secretary of State for India a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he more satisfactory adjustment of the existing economic relations, between the States and the British India. On behalf of the States it was contended before the Committee that all original sovereign powers except those which had been transferred with their consent to the Crown were still possessed by them and that such transfers could be effected only by the consent of the States and that the paramountcy of the British Crown was limited to certain matters-those relating to foreign affairs and external and internal security. The Committee was not prepared to accept this and held that none of the States overhad any International status. Ile committee refused to define paramountcy but asserted that paramountcy must remain paramount; it must fulfil its obligations defining or adopting itself according to the shifting necessities of the time and the progressive development of the States. They however observed that if any Government in the nature of Dominion Government should be constituted in British India such Government could clearly be a new Government resting on a new written Constitution. The Committee noted the grave apprehension of the Princes on this score and recorded a str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of India Act 1935 other than the Part relating to Federation, came into force on the 1st April 1937. From that date the functions of the Crown in the relations with the States were entrusted to the Crown Representative; those functions included negotiations with the Rulers after accession to the Federation: The Federation however never took shape,. An important announcement in the Constitutional set up of India which came after the Second World War had broken out was the Draft Declaration known as Cripp's Plan. This accepted the principle of self-determination but it contained numerous pitfalls which imperilled the future of India. The Mission failed but its failure gave a new turn to India's political struggle. In spite of the deepening crisis of war no further serious effort was made .to resolve the political dead lock in India until the Simla Conference of 1945. This also proved abortive. After the assumption of power by the Labour Government in England a Parliamentary delegation visited India and later the Secretary of State announced the Government's decision to send a delegation of three Cabinet Ministers to India. In May 1946 the Cabinet Mission issued the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and agreements in force at the date of the passing of the Act between His Majesty and the Rulers of Indian States, all functions exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty existing at that date towards Indian States or the Rulers thereof. Under cl. (c) any treaties or agreements in force at the date of passing of this Act between His Majesty and any person having authority in the tribal areas were also to lapse. Section 9 empowered the Governor-General, to promulgate orders for making such provisions as appeared to him to be necessary or expedient for bringing the provisions of the Act into effective ope- ration, for dividing between the new Dominions, and between the new Provinces to be constituted under the Act, the powers, rights, property, duties and liabilities of the Governor-General in Council, etc. Even before the passing of the Act Lord Mountbatten was debating the States' problems with Indian leaders. He put forward to them a peaceful settlement he had in mind, namely to allow the Rulers to retain their titles, extra territorial rights. and personal property and civil list in return for which they would joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o size, geo graphy and other factors relating to each State or group of States. The problem of integration was first faced in Orissa where the States formed scattered bits of territory with no geographical contiguity. After long discussions with the Rulers of the States and the Minister of the State Department it was eventually decided to integrate the small States with the adjoining Provinces. Agreements were signed by the Rulers of these States in December 1947 and on subsequent dates providing for cession by them to the Dominion of India full and exclusive authority, jurisdiction and power in relation to the governance of their States. There were several groups of States which with due regard to geographical, linguistic, social and cultural affinities of the people could be consolidated into sizable and viable units consisting entirely of States. In such cases, territories of States were united to form Unions of States on the basis of full transfer of power from the Rulers to the people. A special feature of these Unions was the provision for the Rajpramukh as the constitutional head of the State who was to be elected by a Council of Rulers. The United State of Gwalior, Indor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernor-General of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purpose of the Dominion shall, by virtue of this instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion exercise in relation to the State...... such functions as may be vested in them by of under the Government of India Act, 1935. Clause 31 accept the matters specified in the Schedule hereto as the matters with respect to which the Dominion Legislature may make laws for the State. (The schedule mentioned contained several matters of which the main were defence, external affairs and communications). Clause 5. The terms of this Instrument of Accession shall not be varied by any amendment of the Act (Government of India Act) or the Indian Independence Act, 1947 unless such amendment is accepted by me, by an instrument supplementary to this instrument. Clause 7. Nothing in this Instrument shall be deemed to com- mit me in any way to acceptance of any future constitution of India or to, fetter my discretion to enter into arrangements with the Government of India under any such future constitution. Clause 8. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovenanting State were to be the assets and liabilities of the United State. Under Art. VIII the Rajpramukh was to execute on behalf of the United State, as soon as practicable and in any event not later than 15th June 1948 an Instrument of Accession in accordance with the provisions of s. 6 of the Government of India Act, 1935 and he was to accept as matters with respect to which the Dominion Legislature might make laws for the United State all the matters mentioned in List I and List III of the Seventh Schedule to the said Act, except the entries in List I relating to any tax or duty, by such instrument. Under Article XI the Ruler of each Covenanting State was to be entitled to receive annually from the revenues of the United State for his privy, purse the amount specified against that Covenanting State in Schedule I : provided that the sums specified in the Schedule in respect of the Rulers of Gwalior and Indore were to be payable only to the Rulers of these States and not to their successors for whom provision was to be made subsequently. The said amount was intended to cover all expenses of the Ruler and his family including expenses of his residence, marriage and other ceremon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he as Rajpramukh was acceding to the Dominion of India with intent that the Governor-General of India, the Dominion Legislature the Federal Court and any other Dominion authority established for the purpose of the Dominion would by virtue of the instrument of Accession but subject always to the terms thereof and for the purposes only of the Dominion exercise in relation to the United State such functions as may be vested in them or under the Government of India Act, 1935. By cl. (2) he assumed the obligation of ensuring that due effect was given to the provisions of the Act (the Government of India Act 1935) within the United State so far as they were applicable by virtue of the Instrument of Accession. By cl. (3) he accepted all matters enumerated in List I and List III of the Seventh Schedule to the Act as matters in respect of which the Dominion Legislature might make laws for the United State. This was of course subject to some provisos which it is not necessary to set out. Under cl. (6) the terms of the Instrument of Accession were not to be varied by any amendment of the Act or the Indian Independence Act 1947 unless such amendment was accepted by the Rajpramukh. Under cl. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Constitution itself, or the covenants agreements 'etc to the extent necessary. The above pattern did not however apply to all the Indian States. A number of small States of Orissa executed Merger agreements which were confirmed on behalf and with the authority of the Governor-General by the Secretary. to the Ministry of States. These agreements were entered into in December 1947. By Art. I of the agreement the Raja of the State ceded to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State and agreed to transfer the administration of the State to the Dominion Government on the 1st January, 1948. As from that date the Dominion Government was to be competent to exercise the said powers and authority and jurisdiction in such manner and through such agency as it might think fit. Under Art. 11 the Raja was to be entitled to receive from the revenues of the State annually for the privy purse a certain sum of money which was to cover all the expenses of the Ruler and this family etc. Under Art. III he was to be property (as distinct from State properties) belonging to him on the date of the agreement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23rd 1 January 1950. The then Maharaja was to receive ₹ 26 lakhs free of all taxes as and by way of privy purse per annum but provision was to be made subsequently by the Government of India with regard to his successor. For an other instance of integration through Merger Agree- ment I may refer to the Kutch Merger Agreement dated 4th May, 1948 between the Governor-General of India and the, Maharao of Kutch. The preamble shows that the agreement was being entered into in the best interests of the State of Kutch as well as of the the Dominion of India to provide for the administration of said State by or under the authority of 'the Dominion Government. Under Art. I the, Maharao ceded to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State and agreed to transfer the administration of the State to the Dominion Government on the 1st day of June 1948. As from that day the Dommion Government was to be competent to exercise the said powers, authority and jurisdiction in such manner and through such agency as it might think fit. By Art. 2 the Maharao was to be entitled to continue the same personal rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competent Legislature or other competent authority Under Cl. 5 all property wherever situate which, immediately before the appointed day was vested in the Dominion Government for purposes of the governance of a merged State was as from that date to vest in the Government of the absorbing Province unless the purposes for which the property was held immediately before the appointed daywere central purposes. Another Order known as the Stages Merger (Chief Commis- sioners' Provinces) Order, 1949 was promulgated on the 29th July 1949. The State of Kutch along with other States was to be administered by and under this Order in all respects as if they were a Chief Commissioner's Province to be known as the Chief Commissioner's Province of Kutch. The unification of India however thus achieved was not as a result of negotiations across the table nor was it accomplished overnight in the way ordinary contracts and engagements are entered into after some deliberation. Full credit for the same goes not only to the Ministry of States led by Sardar Vallabhbhai Patel but also to the Rulers of the hundreds of Indian States who realised that in the interest of the people of their Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise. While there was recognition in the various announcements of the British Government of the fundamental fact that each State should link up its future with that Dominion with which it was geographically cotinguous, the Indian Independence Act released the States from all their obligations to the British Crown.......... They (the British Crown) even conceded that theoretically the States were free to link their future with whichever Dominion they liked, although, in saying so, they referred to certain geographical compulsions which could not be evaded. The situation was indeed fraught with immeasurable potentialities of disruption, which some of the Rulers did wish to, exercise their technical right to declare independence and others to join the neighboring Dominion. If the Rulers had exercised their right in such an unpatriotic manner, they would have found considerable support from influential elements hostile to the interests of this country . . . . It was in this unpropitious background that the Government of India invited the Rulers of the States to accede on three subjects of Defence, External Affairs and Communications. At the time the proposal was put forward to the Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y predecessor Government. Questioned by a member as to who would decide, T. T. Krishnamachari replied The idea is that the court shall not decide in this particular matter. It is subject only to the provisions of Art. 119 by which the President may refer the matter to the Supreme Court and ask for its opinion and the Supreme Court would be bound to communicate its opinion to the President on any matter so referred by him. The House will also remember that there are a few articles in the Constitution, specifically 302-A (the present Art. 291) and 267-A (the present Art. 362) where there are references to these agreements, covenants, sanads etc. and even these are precluded from adjudication by any court. The House will recognise that it is very necessary that matters like these should not be made a matter of dispute that goes before a court and one which would well nigh probably upset certain arrangements that have been recommended and agreed to by the Government of India in determining the rela- tion between the rulers of States and the Government of India in the transitory period. After the Constitution is passed, the position will be clear. Practically all the States have co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g as follows :- (1) Art. 291 embodied the Constitutional acceptance and re- cognition of the guarantees or assurances regarding tax-tree privy purses., The privy purse guaranteed by the Government under the Merger agreements or Covenants were further assured and guaranteed by the Constitution and charged on the Consolidated Fund of India. Arts. 291 and 362 themselves created new and independent rights. The pledge to pay privy purses and the guarantee regarding privileges etc. are inseverable from these accessions and mergers. The obligation to pay privy purses and the said guarantee regarding privileges etc. which are inseverable from the accession and merger cannot be abolished by any law, much less by any executive action. (ii) (1) The President of India passed the order withdrawing the recognition of the petitioner and the other Rulers without applying his mind to the question of legality or propriety of the Order. The whole and only object of the Order was to deprive the petitioner and the other Rules of their privy purses and their personal rights and privileges. The derecognition of all the Rulers en masse is itself the clearest possible proof that the whole object is to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the agreements and covenants. According to the petition Art. 363 covered cases of a dispute arising out of a settlement with a Ruler or a dispute in respect of a right or obligation founded on a provision of the Constitution relating to such a settlement but it did not cover the case of policy embodied in legislative or administrative action to abolish altogether the institution of Rulership and its rights and privileges and of privy purses. The prayers formulated in the petition were as follows (a) A writ, direction or order under Art. 32 of the Constitution declaring-the Order dated 6th September 1970 to be unconstitutional, ultra vires and void and further to quash the Order; (b) a writ, direction or order declaring that the petitioner continues to be the Ruler and continues to be entitled to the privy purse and to his personal rights and privileges as a Ruler; (c) a writ, direction or order directing the Union of India to continue to pay the privy purse to the petitioner and to continue' to recognise the Rulership and the personal rights and privileges of the petitioner and to implement and observe the provisions of the covenant/Merger agreement entered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution did not create any legal right in a person. It only laid down the source and method of payment of the privy purse. The article in laying down that the privy purse shall be charged on and paid out of the Consolidated Fund of India meant no more than that these sums would be sums within the meaning of Arts. 112(2)(a) and 113(1) of the Constitution and would not be submitted to the vote of Parliament. And secondly that such sums would be exempt from all taxes on income. Even if the article created a legal right in a person recognised by the President as a Ruler, to receive payment of privy purse Art. 363 barred the enforcement of such right. (o) Art. 362 of the Constitution did not create or impose any legal obligation on Parliament or the Legislature of a State or the Union executive or the State executive in respect of the said privileges and even with respect thereto Art. 363 barred jurisdiction of all courts in India. (p) The concept of Rulership, the privy purses and the said privileges unrelated to any current functions and social purposes have become incompatible with democracy, equality and social justice in the context of India today. Since the commenceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and Art. 363 barred adjudication by a court of law with respect to the rights claimed. The crucial question in the petition is whether the petitioner is entitled to a declaration that the order withdrawing his recognition as a Ruler is beyond the scope of any executive action of the President. The only provision in the Constitution in which the recognition of a person as a Ruler appears is Art. 366(22). The article being a Code to the meaning of the words used in the Con- stitution we have to see exactly what it proposes to do and what it achieves. Unless a ruler can be identified for the purposes of the Constitution Art. 291, Art. 362 and Art. 363 cannot be applied. Clause (22) fixes the identity of the Ruler for the purposes of the Constitution as a Prince, Chief or other person by whom any covenant or agreement as is referred to in cl. 1 of Art. 291 was entered into. Obviously before a person can be a Ruler under this limb of the article he must be a person who had entered into the kind of agreement just now mentioned. But in order to be a Ruler for the purpose of the Constitution he is also to be recognised by the President as a Ruler of a State. This means that at the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulers who composed of the bulk of the body. When on the eve of the Constitution being finally adopted the Rulers with the exception of two or three accepted the same as binding upon them and their States, it must follow that they accepted and adopted the Constitution of India because they thought and were assured that the provisions in it regarding themselves and their successors were to their satisfaction and were binding in nature. They certainly never imagined that they would be the play-things of the executive Government of the Union of India to be thrown out like pawns off the chequer board of politics at any moment when the Government felt that their presence was irksome or that they were anachronistic in the democratic set up of India. This democratic set up was what the Constitution ushered in albeit with a shadow of the past in the Rulers with attenuated pomp and pelf. The choice of a person as a Ruler to succeed another-on his death was certainly not left to the mere caprice of the President. He had to find out the successor and this he could do not by applying the ordinary rules of Hindu Law or Mohamedan Law but by the law and custom attaching to the gaddi of a particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any political consideration or in an arbitrary fashion. Another instance of applying the law and custom of succession is afforded by the case of Dholpur which was enquired into by Shri K. N. Wanchoo, Chief Justice of the Rajasthan High Court (as he then was) forming a Committee with two Rulers. To my mind the Merger agreements and covenants did not be- come waste paper on the commencement of the Constitution to be consigned to the record room or any museum. So long as the above provisions enure in the Constitution a Ruler will have to be found for a State and such finding must be on the basis of the law and custom of the State. That is the assurance which was given to the Rulers when they accepted the Constitution and I see no reason why the Constitution should be interpreted in a way to set that .at naught. In the light of the above, my view is that Art. 366(22) implied not merely a right or power but a duty or obligation to recognise a person as a Ruler i.e. a duty or obligation to do so and the power ,or duty to withdraw recognition must be confined to cases when the first recognition was not proper as in the case of the Sirohi succession. But the learned Attorney-General w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de to paragraph 241(3) at page 129 of the White Paper on Indian States under the heading Recognition of Rulers reading : The Rulers of the merged and integrated States have been guaranteed succession according to law and custom. In the Covenants and some of the Agreements of Merger, provision has been made for the procedure to be observed for the, settlement of the cases of disputed succession. In the case of Rulers of States forming Unions, every question of disputed succession is to be decided by the Council of Rulers after referring to the High Court of Union and in accordance with the opi- nion of that Court. The above is followed by the quotation of Art. 366(22) and according to the White Paper it is expected that in according recognition to Rulers, the President will show due regard to the provisions of the Covenants and Agreements of Merger in respect of the cases to which these provisions apply. (b) The learned Attorney-General then submitted that the power of recognition was a political power in the paramountcy field to which the Dominion Government and thereafter the Union Government under the Constitution succeeded and for this he referred to White Paper, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power was not the matter of a legal right and was exercised as an act of paramountcy and retained the same character. He cited various decisions of this Court to show that covenants,and Merger agreements have always been so interpreted, e.g. Virendra Singh others v. State of U.P.( [1955] 1 S. C.R. 4 5 at 429), Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income Tax([1959] S.C.R. 729 at 744) and a number of other cases. He argued further that a plea which was available to the Dominion of India can now be put forward by its, successor government and in support of his contention relied on, the cases of Secretary of State V.Kamachee Boys Sahaba(7 M.I.A. 476), Doss v. Secretary of State(L.R. 19 Equity 509), Solmon v. Secretary of State ([1906] 1 K.B. 613) and several others. In the first case the British Government acting as sovereign power had seized the whole of the Raj of Tanjore as an escheat on the ground that the dignity of Rajah was extinct for want of male heir and this being on act of State the Supreme Court of Madras had no jurisdiction. In Doss's case (Supra) what was sought to 'be enforced was the liability of an ex-Ruler of Oudh which was annexed by the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Hemant Singh as the Ruler of Dholpur from 22nd October, 1954. The contentions put forward on behalf of the petitioner, the appellant to this Court were (1) The handing over or authorising the taking over of pri- vate properties was by executive flat and was ex facie bad as infringing Art. 19 (1) (g) and Art. 31 of the Constitution; (2) that the recognition of a Ruler even if it was an instance of exercise of political power was itself an insignia of property and therefore it could only be by authority of law and would have to yield to fundamental rights. (3) After the commencement of the Constitution recognition of the Ruler was not an exercise of political power and that such recognition under cl. (22) meant recognising a fact that a person was a Ruler and the clause did not empower the President to create a fact of bringing into effect a Ruler by recognising a person as a Ruler. (4) If there was any power to recognise the Ruler it was an arbitrary and unguided power and infringing the fundamental right to property, and (5) As there was no dispute regarding the covenant inasmuch as succession did not arise out of the covenant Art. 363 of the Constitution was not attracted. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to establish any claim to any private property belonging to the last Ruler. There have 'however been instances where the President did not act strictly in accordance with what conceive to be his power, duty or obligation to recognise or to withdraw recognition to a Ruler. A notable instance of this occurred soon after the commencement of the Constitution when recognition was withdrawn from Sir Pratap Singh, the Ruler of Baroda and his eldest son Yuvaraj Fatehsingh was purported to be recognised as the Ruler of Baroda under the powers conferred by Art. 366(22). The order was served on Sir Pratap Singh on April 12, 1951. The trouble in this case originated with Sir Pratap Singh's attempt to foment trouble against the Union of India and his design to challege the merger of Baroda. Full details of this episode are given in Mr. Menon's book from page 403 onwards. Some instances where there was no recognition of any successor to an erstwhile Ruler occurred in the case of Baudhraj of Orissa, Nandgaon of Madhya Pradesh and Delath of Himachal Pradesh. In the first case the widow of the Raja was informed in May 1958 that after consideration of the report submitted by Shri B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 but before that one must refer to Art. 291 which is the prop and pillar to the claim of privy purse. This 'article places the payment of privy purse on a constitutional foundation. It expressly refers to the covenants or agreements entered into by a Ruler of an Indian State before the commencement of the Constitution and provides for the disbursement thereof by directing that the sums shall be charged on and paid out of the Consolidated 'Fund of India. In effect it means that the guarantee given by the Government of India for the payment of sums free of taxes by way of privy purse under convenants or agreements etc., is to be worked out and discharged by ensuring that the said sums shall be charged on and paid out of the Consolidated Fund. According to Mr. Palkhivala. (1) Art. 291 is mandatory. It creates new and independent rights and obligations by being engraved in the Constitution and as such beyond the reach of the Legislature and the Executive. This new and independent right makes the article a self-ordaining and self-sustaining one. In cases where there is no dispute about the amount of the privy purse no question of any reference to the covenant arises. (2) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -bar of jurisdiction under Art. 363 cannot be pleaded to protect a nullity. The submissions of the learned Attorney-General were (a) The right to privy purse which accrues under Art. 291 clearly relates to a covanant : hence Art. 363 bars any dispute in respect of such a right or recognition. The Constituent Assembly Debates go to show that this article was meant to give constitutional recognition to guarantees given by the Government of India and provided for the expenditure being charged on the Central revenues subject to such recoveries as might be made from time to time from the Provinces and States in respect of these payments. It did not create any new and independent right unrelated to the covenant. (b) The second limb of Art. 363 bars any dispute under Art. 291 as would be apparent from the correspondence between Shri V. P. Menon, the Secretary to the Ministry of States and S. N. Mukherjee. (c) Art. 291 which gave constitutional guarantee to those demands embodied constitutional sanction for the due fulfilment of the Government of India's guarantees and assurances in respect of privy purses. (d) The covenant was an act of State and any violation of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be brought within the fold of the Constitution. As observed by Sardar Vallabhbhai Patel the settlements with the Rulers were overall settlements taking all the pros and cons of the situation into consideration the aspirations and ambitions of the people of the States, their wish and desire to get independence of the same type which their brethren in the erstwhile British India had obtained, their right and determination to have a voice in the administration of the country through their elected representatives, their zeal for getting out of the arbitrariness of some of the Rulers, no less than the wish and desire of the Rulers to honour and accept the desires and ambitions of their people coupled with a desire, to live in peace at least with a part of their denuded status, their decimated right to property and a fraction of the personal privileges to which they were previously entitled. As Sardar Vallabhbhai Patel put it : The privy purses and the guarantee as to personal rights and privileges was the quid pro quo for the parting of their powers and their huge States by the Rulers and was the minimum which could be afforded to them. Sardar Vallabhbhai Patel speaking in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Consolidated Fund, that there was something akin to a pledge of it for the payment of the privy purse giving rise to a new right.. in my view whatever the nature of their right it- is related to the covenants and as such within the fold of Art. 363. Before referring to any decisions on the point it may be useful to make an attempt to define the scope of Art. 363 as if it was a case of first impression. The article purports to over-ride all other provisions of the Constitution excepting Article 143. in respect of recourse to any court of law for settlement of any disputes. covered by it. Article 143 is a provision enabling the President of India to obtain the opinion of this Court by a reference on any question of law or fact of such public importance as merits a scrutiny by the highest court of the land. Article 143 is only anenabling provision but its scope, is so wide that on any question, of public importance-be it one of law or fact-the President may. refer to this Court for its opinion. Save for the power of the President to refer a matter to this Court for its opinion under Art. 143, Art. 363 imposes an absolute bar on the jurisdiction of all courts to adjudicate upon disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he nature of the controversy it would be a dispute short of somebody trying to raise a contention which was absurd on the face of it e.g., ,that 'black means white. The right, liability or obligation in dispute must arise out of the provisions of the Constitution which has any bearing on any treaty, agreement, covenant, engagement etc. The expression relating to means inter alia stand in some relation, to have bearing or concern, to pertain, to refer, to bring into association with or connection with. In my view Art. 291 is undoubtedly a provision of the Constitution relating to covenant, agreement etc. As I have already indicated Art. 291 is not merely a provision for finding out the .amount of the liability of the Dominion of India by way of privy purse to a Ruler. It expressly refers to covenants or agreements ,entered into by the Ruler under which payment of sums free of tax had been guaranteed or assured by the Government of the Dominion of India as privy purse and gives the term as to privy purse a new shape and form Article 291 not refers to the covenant, engagement etc. but certainly has a bearing on or concern with the same and is brought into association or co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Seraikella came to be administered as a part of Bihar and the laws under which those orders were made were ultra vires and the Province of Bihar had no authority to carry on the administration of the State, was dismissed by a majority of the Judges of this Court as being barred by Art. 363. Among the contentions urged there was one that the suit which was filed before the 26th January 1950, stood transferred to Supreme Court under Art. 372(2) of the Constitution and that the Bar of Art. 363 was only prospective and of retrospective. Kania, C.J. observed that the all embracing opening words of Art. 363 over-rode the operation of Art. 374(2). The learned Chief Justice also said If the plaintiff contends that that agreement (agreement of 15th December 1947) is not binding on it, it cannot enforce its rights under the original jurisdiction of the Court. If the plaintiff has a grievance and a right to a relief which the defendants contend it has not, the forum to seek redress is not the Supreme Court exercising its original jurisdiction on the transfer of the suit from the Federal Court. In Sudhansu Shekhar Singh Deo v. The State of Orissa([1961] 1 S.C.R. 779.) the Ruler of the er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subject of any action in any municipal courts. The guarantee given by the Government of India was in the nature of I treaty obligation contracted with the sovereign Rulers of Indian States and cannot be enforced by action in municipal courts. Its sanction is political and not legal. On the coming into force of the Constitution of India, the guarantee for payment of periodical sums as privy purse is continued by Art. 291 of the Constitution, but its essential political character is preserved by Art. 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 Dic- tionary means, a periodical payment made specially by a Go- vernment, company, 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 of this Court. In Kanwar Shri Vir Rajendra Singh v. Union of India([1970] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of superannuation and institution of the departmental enquiry against him inter alia on the ground that the same were mala fide passed at the instance of the Chief Minister who was personally hostile to him in order to wreak vengeance on him. The power exercised the Government in that case rested on service rules the proper application of which is always subject to scrutiny by courts of law. Examining the content of the power vested in the Government to pass the impugned orders the Court observed that the use of that power for achieving an alien purpose- wreaking the ministers vengeance on the officer would be mala fide and a colourable exercise of that power, and would therefore be struck down by the Courts . The second case Makhan Singh v. State of Punjab([1964] 4 S.C.R. 797) was one where the appellants contended that sections 3 (2) (15) (1) and 40 of the Defence of India Act, 1962 and r. 30(1) (b) of the Defence of India Rules were unconstitutional and invalid as they contravened the fundamental rights of the appellants inter alia under Arts. 14, 21 and 22. The petitions had been dismissed by the High Court on the ground that the Presidential Order which had been issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be used only within the limits prescribed. Lala Ram Swarup v. Shikar Chand([1966] 2 S.C.R. 553) was a case in which the appellants complained of refusal of permission to sue their tenants by the District Magistrate under s. 3(1) of the U.P. Act 3 of 1947. The said section provided that Subject to any order passed under sub-section (3) no suit shall, without the permission of' the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation, except on one or more of the following grounds. Sub-section (2) enabled the party aggrieved by the order of the District Magistrate to go up in revision to the Commissioner and section 7-E provided for revisional powers to the State Government n very wide terms. Section 16 of the Act in terms provided that the order made under the Act to which S. 3(4) applied was not to be called in question in any court. There it was observed: but the exclusion of the jurisdiction of the civil courts must be made by a. statutory provision which expressly provides for it, or Which necessarily and invariably leads to that inference. In other words, the jurisdiction of the civil courts can be exclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Raleigh Investment Co. Ltd. v. Governor- General in Council(1) the bar of jurisdiction of civil courts in regard to income-tax proceedings was contained in s., 67 of the Indian Income-tax Act, 1922 providing no suit shall be brought in 'any civil court to set aside or modify any assessment made under this Act, and no prosecution suit or other proceeding shall lie against any officer of the Crown for anything in good faith done or intended to be done under this Act. The argument for the appellant was that an 'assessment was not made under the Act if it gave effect to a provision which was ultra vires the Indian Legislature and that in law such a provision was 'a nullity and nonexistent. The Board held that there was ample provision in the Income-tax Act by which an assessee could question the validity of any taxing provision in the statute which provided effective and proper machinery for review on grounds of law of any assessment. Further according to the Board . . assessment made under this Act is an assessment finding its origin in an activity of the assessing officer acting as such. The circumstance that the assessing officer has taken into account an ultra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was summed up at pages 682-683 in seven propositions. It is not necessary to set out the propositions as they all relate to exclusion of jurisdiction of the civil court by express provisions of law or clear implications therefrom. But a constitutional provision of the kind of Art. 363 tran- scends this kind of consideration. All that the Court has to see is whether the dispute falls within either limb of the article. If the dispute is so covered the court is precluded from examining whether the contention of the party asserting a right was genuine or of real substance. Equally the bar will apply where a party denying the right asserted or contesting the claim put forward is guilty of action which on the face of things appears to be arbitrary if there be some scope for raising the plea in denial or contradic- tion. I have taken the view that the President's power or right or duty or obligation to recognise a person as a Ruler arises not merely out of the provisions in Art. 366(22) but also the covenants, Merger agreements or Instruments of Accession the dispute is one which arises out of a provision of the Constitution relating to a treaty, agreement, covenant etc. in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Gift Tax Act inasmuch as such taxing provisions probably were not contemplated at the time. The Government of India in its graciousness saw fit to exempt the Rulers from the operation of these and many other statutes which are still on the statute book. The occasion for considering such statutes has not arisen yet and they may be left for future consideration. Mr. Patkhivala's plea that the act of the President resulted in the destruction of the institution of Rulers and as such was invalid does not bear scrutiny. The orders if valid would operate in the case of each Ruler and have been challenged by the petitioning Rulers in their individual capacity. No body of persons known to law can be called an institution of Rulers According to the figures given by Mr. Palkhivala himself Rulership of. over one hundred States has lapsed during the last twenty years 'and the process may go on till no Rulers are left. In this case we are concerned with the rights of individual Rulers and not of them as a class. In the result I have to hold that this series of petitions is not maintainable remarking, at the same time, that the action of the President appears to be unjustified. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner succeeded to the Gaddi on July 16, 1961 and thereafter he was duly recognised by the President under Art. 366(22). Ever since the merger of the State with the Union of India, the petitioner's father and later on the petitioner was being paid the privy purse guaranteed under Art. 291 of the Constitution. The petitioner is entitled to a ,privy purse of ₹ 10 lacs per year. He is also entitled to other rights and privileges arising from the Covenants. Prior to August 15, 1947, the Ruler of Gwalior was a Sovereign though his sovereignty was subject to the paramountcy of the British Crown; but that paramountcy lapsed on August 15, 1947 as a result of the Indian Independence Act, 1947. Consequently the Ruler ,of Gwalior as well as other Rulers became absolute Sovereigns. In law they were free to accede to either of the two Dominions of India and Pakistan or to remain independent. But by stages the Indian States adjoining the Dominion of India merged in the Dominion of India. After their merger the Rulers of those States had ,no ruling powers. They had only such rights and privileges as were recognized or created under the Covenants entered into by them with the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution. According to the petitioners Arts. 291 is a mandatory provision and it is not open to the Government to refuse to obey the mandate of the Constitution. The petitioners also complain that in making the impugned orders, the President not only acted outside the scope of Art. 366 (22) of the Constitution but he also thereby violated Art. 53 (1), 60, 73(1), 362, 291, 112 to 114 of the Constitution. The petitioners' further grievance is that under various statutes as well as under the Merger Covenants they are entitled to certain privileges; the President by purporting to take away those privileges has contravened Arts. 14 and 21 of the Constitution. It is also said that the Council of Ministers were guilty of mala fides in advising the President for making the impugned orders for collateral reasons and for the, sake of political exigencies. According to the petitioners, Art. 363 of' the Constitution does not bar the jurisdiction of the Court in granting the reliefs prayed for by them. The respondent in its reply does not deny that the object of the impugned orders was to abolish the Rulers as a class. It contends that the present policy of the Government is not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reasons mentioned in the Writ Petitions ? (2) Does Art. 291 impose any mandatory duty on the Government and confers corresponding rights on the Rulers ? (3) What is the scope of Art. 362 ? (4) Does Art. 363 exclude the jurisdiction of this Court from considering whether the impugned orders are ultra vires the powers of the President and- whether there has been any violation of Arts. 291 and 362 of the Constitution ? (5) Are these petitions under Art. 32 of the Constitution maintainable ? What fundamental rights of the petitioners, if any, have been infringed and (6) What relief, if any, the petitioners are entitled to in these petitions ? Before proceeding to consider and pronounce on the issues formulated above, it would be useful to briefly refer to the historical background leading to the merger of the Indian States in the Indian Union as both the petitioners and the respondent have laid great stress on the same. During the time of the British rule. there were over 500 Indian States possessing varying degrees of sovereignty. In the matter of internal administration, most of the Rulers had complete freedom. But their sovereignty was subject to the treaties, en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers to their authority. It was a highly explosive situation. Sardar Vallabhbhai Patel with his political sagacity and pragmatic approach, availing himself. of the co-operation of Lord Mountbatten and the assistance of his energetic and tactful Secretary, V. P. Menon first persuaded practically all the Rulers to accede to India on three subjects viz. Defence, External Affairs and Communications and thereafter stage by stage drew them closer to the Dominion of India and finally persuaded them to merge with the Dominion of India. All this was done in the course of about two years, a feat unparalled in history. The saga of the integration of the Indian States into the Dominion of India will remain the most exciting and most glorious chapter in the history of our country. This mighty achievement could not have been had peacefully but for the patriotism and farsightedness of many of the Rulers of the Indian States. Sardar Patel told the Constituent Assembly that the Rulers of the Indian States were the co- architects of India's unity. But it was said on behalf of the respondent that the Rulers merged, their States in the Dominion out of sheer necessity and not out of any patriotis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tolerate any longer the concept of Rulership or the privy purse or any of the privileges incorporated in the Covenants and Merger Agreements. There- fore it was the duty of the Government to give effect to the will of the people. It has also taken the stand that the concept of Rulership, privy purse and the privileges guaranteed to, the Rulers without any relatable function and responsibility have become incompatible with democracy, equity and social justice in the context- of India of today. These contentions raise political issues. This Court is not the forum for going into these issues nor is it concerned with the political passions surrounding the issues arising for decision in this case. Our primary function in this case. is to interpret the relevant provision of the Constitution and to see. whether the complaint of the petitioners that some of their fundamental rights have been infringed is correct. It is also not for this Court, except to the extent it bears on the question of interpretation of the Constitution, to go into the historical background of any constitutional provision. If the meaning of a provision is plain and unambiguous, its historical background becomes ir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution. This is especially true as regards the fundamental rights, as to which this Court has been assigned the role of a sentinel on the quivive. In these cases as in other cases we do not seek to sit in judgment on Govern- ment's policies. They are the concern of the legislative and the executive organs of the State. But the Constitution has imposed a special duty on this Court to preserve and protect the Constitution--we, only seek to discharge that duty. Now coming to the scope of cl. (22) of Art. 366, it is necessary to notice that Art. 366 is an article which defines 30, expressions appearing in one or more of the articles in the Constitution. That article starts by saying that In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them....... . From this it is clear that the meaning given to the expressions mentioned in that article are only for the purpose of the Constitution and not for any other purpose as he ld by this Court in Maharaja Pravir Chandra Bhanj Deo Kakatiya v. State of Madhya Pradesh ([1961] 2, S.C.R, 501.). Clause (15) of Art. 366 defines an Indian State as meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be read ajusidem genesis with the words other person should be read ejusidem genesis with the words were known by various names such as Maharana,, Maharaos, Maharaja, Nizam etc. To avoid listing all those names in Art. 366(22), the draftsman has used the words other person but the, meaning of those words has been made clear by the words accompanying the words other person' viz. by whom any such agreemeat as is referred to in cl. (1) of Art. 291 was entered into and who for the time being is recognised by the President as Ruler. Now coming to the second part of that clause, 'here again the words any person refers to the person who at the relevant time is the successor of the person who entered into the Covenant or Agreement. This is made clear by the expression for the time being is recognised by the President as the successor of such Ruler , such Ruler being the Ruler referred to in the first limb of the clause. Art. 366(22) contemplates two classes of persons who are to be recognised by the President as Rulers. The first group consists of those persons who entered into the Covenant with the Dominion of India and the second group their successors. Coming to the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any given point of time. That Article does not say that the, President may recognise a Ruler. On the other hand it speaks of the Ruler who for the time being is recognised by the President , an expression which contemplates the continuity of Rulership and not merely of its possible existence. A Rulership of an Indian State can only disappear if both the original, Ruler who entered into the Covenant or Agreement as well his success ors cease to exist as in that case President cannot recognise any one as the Ruler of that State. From the above discussion it follows that the power of the President under Art. 366(22) is fully regulated. In this context we may refer to the definition of the Ruler in s. 311 (1) of the Government of India Act, 1935 which says Ruler in relation to an Indian State means the Prince, Chief or other person recoginised by His Majesty as the Ruler of the State . The power to recognise given to His Majesty,under this section is blanket power. It is subject to no limitation. Under that section Any one could have been recognised as the Ruler of an Indian State. No such power is conferred on: the President under Art.. 366(22). I shall now proceed to con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 366(22) imposes a constitutional duty on the President. To enable him to discharge that duty, certain limited powers are; conferred on him. While discharging his duty under the first part of Art. 366(22), he has to locate the person who according to law can be said to have entered into the Covenants or Agreements and under the second limb his duty is to find out the successor of the Ruler coming within the scope of the first limb. As mentioned earlier the recognition of the Ruler who executed the Covenant or Agreement is a mere formality. So far as the recognition of the successor of that Ruler is concerned, in case of dispute, it becomes the duty of the President to decide as to who is the successor of the Ruler who executed the Covenant or Agreement at the relevant- time. Evidently the Constitution makers were of the opinion that any dispute as to who is the Ruler for the purpose of the Constitution should not be left to be decided by courts of law because such a procedure would involve years of delay in determining the person who is entitled to the benefit of the privy purse and the privileges. Hence that question was left to the exclusive decision of., the President. Despite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the President is given power to determine for the purpose of the Constitution the corresponding Provinces corresponding Indian State or corresponding State in case of doubt. This, again is a duty imposed on the President. He cannot refuse to discharge that duty. Now coming to the contention that power to recognise the: Rulers includes power not to recognise, we shall test the correctness of that contention with reference to some other Articles in the Constitution which deal with certain constitutional duties of the President. The power to appoint the Election Commission is that of the President. The Election Commission alone can hold the elections of the President, Vice-President, members of that Parliament and the State legislatures. The President cannot decline to appoint the Election Commissioners. It is not in the power of the cabinet to advise the President not to appoint one or more of Election Commissioners even if some future cabinet should think that the elections are trappings of feudalism. Similarly the cabinet cannot advise the President not to appoint a Governor and thus destroy the federal structure of our Constitution or not to appoint the Chief Justice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld claim to have inherited even a fraction of impemountcy is the very antithesis of rule of law. It was a power exercised by a superior sovereign over the subordinate sovereigns. I fail to see how the Government of India can consider itself as a superior power in its relationship with the citizens of this country. The doctrine of paramountcy even during the days of the Imperial rule had nothing to do with the British Government's relationship with its subjects. Herein we are concerned with the power exercisable by the President under a provision of the Constitution. Nature and scope of that power must be spelled out from the language of the provision and from the purpose intended to be served by that provision. it is an insult to our Constitutionl to say that any facet of imperialism has crept into it. One should have thought that paramountcy so far as this country was con- cerned was dead and was deeply buried as far back as on the 15th August 1947. Its resurrection in any form is repugnant to our 'Constitution. It is true that even after August, 1947, on some occasions some of our leaders, referred to the existence of paramountcy. But that reference is not to the paramou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly or through the, officers subordinate to him in :accordance with the Constitution. Further Art. 73(1) prescribes that the executive power-of the Union must be exercised subject to the provisions of the Constitution. The executive is bound to obey this mandate. It, has no, competence to exercise the executive power in violation of the mandates given by the C onstitution. Art. 291 gives a mandate to the executive to pay the privy purses guaranteed to the Rulers exempt from all taxes on income. Art. 366 (22) imposes a constitutional duty on the President to recognise the Rulers of the Indian States. Art. 362 requires the executive that due regard should be given to the guarantees and assurances given under the Agreements or Covenants entered into with the former Rulers of the Indian States. The President on the advice of the cabinet has disregarded the mandate of Arts. 53(1), 73(1), 291,362 and 366(22). That being so his order must be held to be ultra vires the Constitution, hence a nullity. It was urged on behalf of the petitioners that the members of the cabinet who advised the President to issue the impugned orders were bound by their oath to bear true faith and allegiance to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenge. In the course of the judgment it was observed : 'The recognition of the Ruler is a right to succeed to the gaddi of the Ruler. This recognition of Rulership by the President is an exercise of political power vested in the President and is thus an instance of purely executive jurisdiction of the President.' What is said in that case is that the President while acting under Art. 366(22) is exercising his executive jurisdiction and that jurisdiction was described as political power . That expression may be inappropriate but that is not the ratio of the decision. It was a casual observation. There is nothing like a political power under our Constitution in the matter of relationship between the executive and the citizens. Our Constitution recognises only three powers viz. the legislative power, the, judicial power and the executive power. It does not recognize any other power. In our country the executive cannot exercise any 'sovereignty over the citiznes. The legal sovereignty in this country vests with the Constitution and the political sovereignty is with the people of this country. The executive possesses no sovereignty. There is no analogy between our Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eement that the same has to come out from the revenues of Bhopal State. The privy purses payable to all those Rulers were free of all taxes. In some of the Merger Agreements rights were also created in favour of the third parties, such as guaranteeing the continuity of the services of the permanent members of the Public Service of those States as well as the payment of pensions due to the retired civil servants. In several of the Merger Agreements it is provided that if there was any dispute as to whether a particular item of property is the private property of the Ruler or the property of the State, that dispute was to be decided by an authority to be appointed as provided in those agreements. In most of those agreements, it is provided that the succession to the Rulership should be according to law and custom. That provision was a redundant provision as succession means succession according to law or custom. No one can succeed to a deceased person excepting according to law or custom. Those agreements also provide that no enquiry should be made by or under the authority of the Government of India and no proceedings should be taken in any court in their former States in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y purse or to other persons in the merged State on account of political pensions and the like, shall as from the appointed day, be liabilities of the absorbing province, unless the loan, guarantee or other financial obligation is relatable to central purposes. This Order was made on July 27, 1949. Under this Order fifty-five Indian States merged in the Bombay Province, three in Madras, two in Bihar, fifteen in Central Provinces and Berar, three in East Punjab and twenty-four in Orissa. It was not disputed that the Merger Order is a legislative measure. Its validity was not challenged before us. In view of that Order, the liability to pay the privy purses of the Rulers whose former States had been added to any particular Province, became the liability of that Province,- a liability imposed by law. Whatever might have been the nature of the liability undertaken by the Government of the Dominion of India under the various Merger Agreements those liabilities came to be recognised by law and made a part of the Municipal law and thereafter they became enforceable as against the concerned Province. It may be noted that this Order was made long before the Constitution came into force. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned union, the Rajpramukh was to act subject to any directions and instructions that may from time to time be given by the Government of India. The covenants provided that the Rulers of the covenanting States as also the members of their families should continue to be entitled to all their personal privileges, dignities and titles enjoyed by them. The succession to the Gaddis was to take place according to law and custom. Questions of disputed succession in regard to covenanting Salute State were to be decided by the Council of Rulers on the re- commendation of a Judicial Tribunal to be constituted in accordance with the provisions of the covenants. The Secretary, Ministry of States on behalf of the Government of India concuffed to the covenants and guaranteed to all its provisions. The concurrence of the Government of India to the covenants was necessary as, the covenanting States had earlier acceded to the Dominion of India. In view of the formation of unions, in the place of old Indian States new units were to come into existence and therefore it was necessary for them to execute fresh Instruments of Accession and that could be done only with consent of the Dominion of India. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore and Cochin as regards the management of certain temples and funds were preserved. They were also given a right to nominate some members to some of the statutory Boards. From the foraging it is seen that under the various covenants, several rights in addition to the right of receiving privy purses had been created in favour of the Rulers of some of the covenanting States. In the draft Constitution, there were no articles similar to Arts. 291, 362, 363 and 366(22). Sometime before October 14, 1949 the Ministry of States, which was instrumental in bringing about the merger of the States with the Union of India wrote to the drafting committee that the guarantees given to the Rulers in regard to privy purses should be given constitutional section. Further it desired that so far as the privileges and other rights of the Rulers are concerned, the same must find recognition in the Constitution though it may not be possible to give any constitutional guarantee in respect of them. It is in pursuance of this request the drafting committee introduced Art. 267(A) (present Art. 291), Art. 302-A (present Art.362) on October 13, 1949 Art. 303(1) (present Art, 366) (22) on October 14, 1949 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to him the expression that such fund shall be charged on the Consolidated Fund of India does not mean that a lien on the Consolidated Fund is created for the payment of privy purses; it only means that the amount payable as privy purses is not votable. He asserted that the expression paid out of in cl. (b) of Art. 291 merely refers to the Fund out of which the payment is to be made and not that it should be paid to any person. Clause (b) of Art. 291 does not according to him give any direction to the Union Government to pay to the Rulers the agreed privy purse but it merely says that the privy purse, if and when paid to any Ruler will be exempt from all taxes on income. In my opinion the contentions advanced by the learned At- torney-General are falacious. The liability undertaken under Art. 291 is a new liability and not an affirmation of an existing liability. As seen earlier, the liability to pay the privy purses of most of the Rulers who merged their States with the Dominion of India had been transfered to one or the other provinces. The liability to pay privy purses to the Rulers who entered into Covenants for forming unions was that of the concerned union and not that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the amount payable to him. It was a legislative device adopted for the convenience of drafting. It would have been a cumbersome process to list all the names of the Rulers who are entitled to privy purses and the amount payable to each of them. To avoid that difficulty, relevant portions of Agreements and Covenants were bodily lifed from those documents and incorporated into Art. 291. This is a well known drafting device. Art. 291 is no way linked with the Agreements and Covenants. The Convenants and Agreements only continue as evidence as to matters mentioned in the first part of Art. 291. After Art. 291 came into force, there is no legal relationship between the Covenants and Agreements and that Article. That Article read with Article 366(22) constitute a self-contained code in the matter of payment of privy purses. Those Articles operate on their own force. In several provisions of the Constitutions, the device of legislating by incorporation has been adopted-see Art. 105(3), Art. 106, cls. 2, 3, 7, 8, 9(5) and 12(3) of the second Schedule. I am also unable to accept the contention of the learned Attorney-General that the expression charged on........ the Consolidated Fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, a repository of public money which now comprises the produce of custom, excise stamps and several other taxes, and some small receipts from the royal hereditary revenue, surrendered to the public use. It constitutes almost the whole of the public income of the United Kingdom (Consolidated Fund Act, 1816). This fund is pledged for the payment of the whole of the interest of the national debt of Great Britain and Northern Ireland (National Debt Act, 1870- s. 6); and besides this, is liable to several other specific charges imposed upo n it at various periods by Act of Parliament, such as the civil list, and the salaries of the judges and ambassadors and other high official persons; after payment of which the surplus is to be indiscriminately applied to the service of the United Kingdom under the direction of Parliament Section 6 of the National Debt Act, 1870 reads 6. Stock Charged an consolidated fund.--The annuities and dividends aforesaid shall continue to be charged on and payable out of the consolidated fund. The language of this section is similar to that of Art. 291 so far as the creation of charge' 'is concerned. Section 6 of the National Debt Act, 1870 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognise a Ruler. Art. 291 proceeds on the basis that President has to recognise a Ruler to each one of the Indian States contemplated by Art. 366(15). By recognising the President merely locates the Ruler. He does not appoint or create a Ruler. No sooner the President recognizes the Ruler of an Indian State, he becomes entitled to the privy purse guaranteed under Art. 291 from the date the Constitution came into force. We are told that as a fact most of the Rulers who entered into the Covenants and Agreements were recognised only in the year 1952 but yet they were being paid the amounts agreed to be paid as privy purses ever since the Constitution came into force and the privileges guaranteed to them were also extended to them even before they were recognised. Similarly, we were told that in the case of successors of the Rulers when there was no dispute as to succession, they were treated as Rulers for all purposes though they were recognised several months after they succeeded to the Gaddi. This shows that the recognition under Art. 366(22) was considered as a mere formality except in the case of disputed succession. To my mind Art. 291 is plain and unambiguous. It says in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vy purses to the'Rulers. The contention of learned Attorney General was that by Art. 291 the Constituent Assembly merely wanted to give some sort of assurance to the Rulers about the payment of privy purses to them in future so as, to allay their apprehensions that may not be paid privy purses in future but in reality, no legal right was created in favour of the Rulers nor any binding obligation imposed on the Union of India. It is difficult to understand this Argument. It will be an uncharitable insinuation to make against the founding fathers that all that they wanted was to, create an illusion in the mind of the Rulers while in reality giving them no guarantee as regards the future payment of the privy purses. If all that the Constituent Assembly desired was to, give some assurance about the payment of privy purses in the future then Art. 362 would have served that purpose. In a general sense the words personal rights include privy purse. Even if the Constituent Assembly wanted to make things clear they could have easily said in Art. 362 personal rights including privy purse instead of wasting a whole article. Further there was nor purpose in charging the privy purses on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judiciary refuse to comply with those mandates they will be not only breaking the oath taken by them but they will be breaking the Constitution itself. I doubt whether the grave implications of the stand taken on behalf of the Government have been realised. I shall now proceed to Art. 362. That Article reads 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 article 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State. This article clearly links itself with the Agreements and Covnants. It has no independent exercise apart from the Agreement and Covenants. Mr. Palkhiwala conceded that Art. 362 is a provision of the Constitution relating to the Agreements and Covenants. Therefore, it follows that if any dispute arises in respect of anyright accruing under or any liability or obligation arising out of Art. 362 then the same would be covered by the second .part of Art. 363. But Mr. Palkiwala sought to place hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 63 this is what the White Paper says in paragraph 240 (at p. 125) Guarantees regarding rights and privileges.- Guarantees have been given to the Rulers under the various Agreements and Covenants for the continuation of their rights, dignities and privileges. The rights enjoyed by the Rulers vary from State to State and are exercisable both within and without the States. They cover a variety of matters ranging from the use of the red plates on cars to immunity from Civil and Criminal jurisdiction and exemptions from customs duties etc. Even in the past it was neither considered desirable nor practicable to draw up an exhaustive list of all these rights. During the negotiations following introduction of the scheme embodied in the Government ,of India Act, 1935. The Crown Department had taken the position that no more could be done in respect of the rights and privileges enjoyed by the Rulers than a general assurance of the intention of the Government of India to continue them. Obviously, it would have been a source of perpetual regret if all these matters had been made as justiciable. Article 363 has, there- fore been embodied in the Constitution which excludes specifically the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 291 was to take away an existing enforceable right, at any rate in the case of several Rulers and substitute the same by a recognition, devoid of all legal contents. To say that is to be cynical about the august body i.e. the Constituent Assembly. the Constituent Assembly could not have enacted Art 291 to show its contempt for the Rulers of Indian States as well as for the recommendation of States Ministry headed by Sardar Patel, the maker of modern India. If two or more provisions in the Constitution deal with one group of topics, those provisions have to be read together and interpretted harmoniously. It is not proper to say that the Constitution is speaking in two voices, as the learned Attorney General wants us to do or that it takes away by the right hand what is gave by the left hand. Therefore we have to read Art. 363 harmoniously with Art. 291. That is equal- ly true of Arts. 363 and 366(22). The rule of harmonious construction is a well known rule. If the aforementioned articles are harmoniously interpretted then the position becomes clear. The purpose of Art. 363 is made clear in the White Paper. Under the Merger Agreements as well as under the Covenants, various rights w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement, covenant etc. We are concerned with this part of Art. 363. Before a dispute can be held to come within the scope of that part, that dispute must be in respect of a right accruing under or liability or obligation arising out of a Provision of the Constitution and that provision of the Constitution must relate to agreements, Covenants etc. The principal dispute with which we are concerned in these cases is whether the President has the power to abolish all Rulers under Art. 366(22). Quite plainly this dispute cannot be held to be dispute in respect of a right accruing or a liability or obligation arising under any provision of the Constitution. Herein we are not concerned with any right, liability or obligation. We are concerned with powers of the President under Art. 3 66 (22). What is in dispute is the true scope of the power of the President under Art. 366(22). That dispute does not fall within Art.363. Power is not the same thing as right. Power is an authority whereas a right in the context in which it is used in Art. 363, signifies property. The fact that the court's decision about the scope of the power of the President under Art. 366(22) may incidentally bear on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that succession will be according to law and custom is merely a statement of the legal position. The same cannot be considered as a part of the 13-L744 Sup CI/71 Agreement. The reference to Agreements and Covenants through Art. 291 is a convenient drafting device. Even if all the Agreements and the Covenants are abrogated the provision will stand intact. Mr. Mohan Kumaramangalam, appearing on behalf of the respondent contended that Arts. 291, 362 and 363 should be considered as one group of Arts. which group together relates to Agreements and Covenants; Art. 3 66 (22) was enacted to effectuate Arts. 291 and 362; Articles 291 and 362 are related to Agreements and Covenants; therefore Art. 366(22) must also be held to be related to Agreements and Covenants. I have earlier considered the meaning of the word 'relating' in Art. 363. Further I have held that Art. 291 is not related to Art. 363 as it not linked with the Agreements and Covenants; it is an independent provision. I have also held that the definition of Ruler in Art. 366(22) is not merely for the purpose of Art. 291 and Art. 362 but also for the purpose of supplying contents for the legislative ,entry 34 of of Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider the decisions relied on by the learned Attorney General and Mr. Kumaramangalam in support of their contention that the disputes with which we are concerned in these cases are disputes falling within the ambit of Art. 363, it is necessary to mention at the very outset that the question whether the orders similar to the impugned orders are within the powers of the President under Art. 366(22) did never come before these Court for decision. No such orders had been passed by the President in the past. There was just one derecognition in the past i.e. that of the former Ruler of Baroda. That matter did, not come before courts. Hence there was no occasion for this Court or for that matter any court in this country to consider the scope of Art. 366(22). The observations made by this Court in Rajendra Singh's case (supra) had been considered by me earlier. Even the scope of Art. 291 had not directly arisen for consideration in any of the decisions of this Court. It is true that there are a few observations in some of the decisions to which I shall presently refer about the nature of the right guaranteed under that Art. 291 and the impact of Art. 363 on that right. Let me no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other owner possessing private property. Article 362 does not prohibit the acquisition of properties declared as private properties by the covenant of merger and does not guarantee their perpetual existence. The guarantee contained in the article is of a limited extent only. It assures that the, Rulers properties declared as their private properties will not be claimed as State properties. The guarantee has no greater scope than this. That guarantee has been fully respected by the impugned statute, as it treats those properties as their private pro- perties and seeks to acquire them on that assumption. Moreover it seems to me that in view of the comprehensive language of article 363 this issue is not justiciable. From this it is clear that the decision in question does not bear on the points in controversy in these cases. The learned Attorney-General next relied on the decision in Sri Sudhansu Shekhar Singh Deo v. The State of Orissa and Anr.(1). Therein a former Ruler of an Indian State challenged the levy of agricultural income-tax on his agricultural properties under the Orissa Agricultural Income-Tax Act, 1947 (Orissa Act 24 of 1947). He contended that in view of the guara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y set out the arguments of the parties as to the scope of Arts. 291, 362 and 363 but declined to go into them as those Arts had not been relied on in the High Court. The next decision relied on by the learned Attorney-General is the decision of this Court in State of Gujarat v. Vora Fiddali Badruddin Mitniberwala([1964] 6, S.C.R. 461). The material facts of that case were that the Ruler of the, State of Sant had issued a Tharao dated 12th March, 1948 granting full right and authority to the jagirdars over the forest in their respective villages. Pursuant to the agreement dated March 19, 1948 the. State of Sant merged with the Dominion of India. At the time of the merger, it was expressly agreed that no order passed or action taken by the Maharana before the day of April 1, 1948 would be questioned but after the merger the Government of Bombay in which province the former State of Sant had merged in consultation with the Government of India cancelled the Tharao in question holding that it was not a bona fide grant. The jagirdars challenged the validity of that order and in support of their case they relied on the relevant clauses in the Merger Agreement. This Court held that the gua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under a right legally enforceable in any municipal court is strictly a political pension within the meaning of s.60(1) (g) of the Code of Civil Procedure. But these observations are obiter. The learned judges in that case had no occasion to consider nor did they go into the scope of Art. 291 or Art. 363. Every observation of this Court is no doubt, entitled to weight but an obiter, cannot take the place of the ratio. Judges are not oracles. In the very nature of things, it is not possible to give the same attention to incidental matters as is given to the actual issues arising for decision. Fur- ther much depends on the way the case is presented to them. In the State of Orissa v. Sudhansu Sekhar Misra and Ors.( [1968] 2, S.C.R. 154.) dealing with the question as to the importance to be attached to the observations found in the judgments of this Court. this is what this Court observed A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Early of Halsbury LC said in Quinn v. Leathem (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those benefits are purported to have been taken away. The denial of those benefits which had been afforded to the Rulers under law is again a contravention of the petitioners' fundamental right to property. It was conceded by the learned Attorney General that an illegal deprivation of any pecuniary benefit to which a person is entitled under any law is. a deprivation of his fundamental right. In view of this concession it is not necessary to refer to decided cases. For the reasons mentioned above, I allow these petitions with costs, quash the impugned orders which means that the status quo ante is restored. The declaration asked for in relief No. 2 is unnecessary. There is no need at present to go into the, other reliefs asked for. Ray, J. These are eight petitions. The petitioners are des- cribed as Rulers of Gwalior, Udaipur, Nabha, Nalagarh, Kutch, Dhrangadhra, Patna and Benaras. On 6 September, 1970 in exercise of the powers vested in the President under Article 366(22) of the Constitution, the President directed that with effect from the date of the said order His Highness Maharajdhiraja Madhav Rao Jiwaji Rao Scindia Bahadur do cease to be recognised as a Ruler of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till survived between the Union of India and the Ruler. Once the President has recognised a person who is entitled to receive privy purse and to be accorded rights and privileges as a Ruler, there can be no interference with the right to receive privy purse. Thirdly, there is no substantive provision in the Constitution .conferring on the President a right to recognise or not to recognise a Ruler or to withdraw recognition. Once the procedure of recognition has been exhausted the President becomes functus officio and has no further authority to withdraw the recognition which he has accorded. In recognising a Ruler the President has to ,conform to the fact of a certain person being Ruler or to the fact of succession in accordance with the position under the Covenants and Merger Agreements and in accordance with law and custom of the family. Article 366(22) imposes a constitutional duty on the President to recognise an existing fact in accordance with the provisions of the Covenants and Merger Agreements and the President has no power or authority independent of such facts. The President is bound by contractual obligations in the Covenants and Merger Agreements and by the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognition of Rulers is ultra vires Article and whether the Government by executive action can abolish the institution of Rulership and wipe out Articles 291 and 362 by policy decisions are said to be outside Article 362. On these allegations in the petition the petitioner seeks three declarations; First that the order is ultra vires, secondly, that the petitioner continues to be a Ruler and continues to be entitled to privy purse and privileges, and thirdly, a. writ 'under Article 32 directing the Government to pay privy purse, recognise Rulership and pay compensation. The respondent denies that the petitioner is legally entitled to privy purse and privileges or that the Government is bound to pay privy purse and accord the privileges by reason of the Covenants or Merger Agreements. The Government denies that the petitioner is entitled to privy purse or to privileges or that the Government is bound to pay privy purse or accord privileges under Articles 291 and 362 respectively. The Government denies that the alleged obligation to pay privy purse or the alleged guarantee regarding privileges cannot be abolished by executive order. The Government denies that independently o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any provision of a treaty, agreement, covenant entered into before the commencement of the Constitution and which has continued in operation after such commencement. The second bar is in any dispute in respect of any right accruing under or any liability or obligation arising out of any provision of the Constitution relating to any treaty, agreement, covenant, engagement, sanad and other similar instruments. It is, therefore, vitally necessary to ascertain first whether there are disputes; secondly, as to what those disputes are; and, thirdly, whether the disputes fall within Article 363. The reason why I referred to the rival allegations is to indicate the nature and character of disputes. Mr. Palkhivala on behalf of the petitioner contended that there was no dispute as to privy purse or to recognition of a Ruler and the only contention was that the order of the President was a nullity. It is indisputable that no one comes to a court of law unless disputes have arisen. When the petitioner alleges that the order is a nullity and the Government alleges that the order is valid a dispute arises at once. Mr. Palkhivala contended that the first limb of Article 363 was clearly not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons under the Articles aforesaid. If both parties say that an order is bona fide there can be no dispute. It is only when one party alleges the order to be a nullity and the other party affirms the order to be valid that parties will have a dispute. The petitioner's contentions bristle with disputes which in the ultimate analysis resolve into keenly debated disputes as to rights of Rulership and Privy Purse. The dispute as to jurisdiction of the President under Article 366(22) is not in vacuo but is a dispute as to rights of recognition of Ruler for the purposes of payment of Privy Purse and enjoyment of rights and privileges. Mr. Palkhivala submitted that he did not want any relief as to Privy Purse now and if the petitioner succeeded in getting a declaration that the order is nullity and if the Government thereafter did not pay Privy Purse the petitioner would then apply for that relief. This position indicates beyond any doubt that the heart of the matter is dispute as to Privy Purse which is stopped by the Order of the President. The order is for purposes of payment of Privy Purse and that is what the petitioner is seeking to enforce. In order to appreciate the true scop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regime recognised succession to the gaddi and settled disputes as to succession and imposed the duty of loyalty to the Crown. The Indian States Committee in 1927 had expressed the view that 'paramountcy must remain paramount, it must fulfil its obligations, defining or adapting itself according to the shifting necessities of the time and the progressive development of the States . This was the essence of the doctrine of paramountcy in British India. Paramountcy could not be defined. It was an imperialist imposition on the Rulers of Indian States. The Cabinet Mission issued a Memorandum dated 12 May, 1946 and announced a plan on 16 May, 1946 later on known as the Cabinet Mission Plan. In the memorandum the Cabinet Mission affirmed that the rights of the Indian States which flowed from their relations with the British Crown would no longer exist when the British would leave India and that the rights surrendered by the States to the paramount power would revert to these States. The Cabinet Mission Plan was a statement embodying suggestions and recommendation towards the speedy setting up of a new Constitution for India. Referring to the States, the Cabinet Mission Plan said that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inty or otherwise would also lapse. The proviso to section 7 of the Indian Independence Act, 1947 was that notwithstanding the lapse of suzerainty and lapse of treaties, effect shall, as nearly as might 'be, continued to be given to the provisions of any such agreement referred to in section 7 (b) of the Act which related to customs. transit, communications, posts and telegraphs or other like matters until the provisions in question were denounced by the Ruler of the Indian State or by the Dominion or Province or were superseded by subsequent agreements. The Instruments of Accession executed by the Rulers of Indian States declared accession to the Dominion of India on three subjects, viz., Defence, External Affairs and Communications. In the Instruments of Accession the Rulers provided that nothing in the instrument wag to be deemed to commit the Ruler in any way to acceptance of any future Constitution of India or to fetter a Ruler's discretion to enter into arrangements with the Government of India under any such future Constitution. The Instrument concluded by stating that nothing in the Instrument would affect the continuance of the Ruler's sovereignty in and ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dignities and titles. The third type of integration was the formation of a Union of States whereby certain States described as the Covenanting States entered-into a Union of States with a common executive, legislative and judiciary. These Covenants provided for a Council of Rulers with the Rajpramukh as the President of the Council. These Covenants also had similar provisions with regard to privy purses and succession. The Ruler of each Covenanting State was to be entitled to receive annually from the revenues of the United State for his privy purse, the amount mentioned free of all taxes. The succession according to law and custom to the gaddi of each Covenanting State and to the personal rights, privileges, dignities and titles to the Rulers was guaranteed. The Government of India concurred in the Covenants and guaranteed all the provisions. The Covenant for the United State of Madhya Bharat came into existence in the month of April, 1948. The other Unions also came into existence near about the same time. The Merger Agreements came into existence near about the months of April and May, 1948. In the month of September, 1948 the Rulers of Covenanting States executed revised In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to provincially merged and centrally merged States. The Extra Provincial Jurisdiction Act was really a half way house between complete separateness and full integration. A law passed by the Dominion Parliament did not automatically apply to the merged States but had to be made applicable by a notification under the Extra Provincial Jurisdiction Act, 1947. That is why sections 290A and 290B were inserted by the Government of India Act Amendment Act, 1949 into the Government of India Act, 1935 for effecting integration of merged States. Section 290A of the Government of India Act, 1935 provided for administration of certain Acceding States as Chief Commissioners' Provinces or as part of a Governor's or Chief Commissioner's Province. Section 290B provided for administration of areas included within a Governor's Province or a Chief Commissioner's Province by an Acceding State. Under the said section 290A there came into existence the States Merger (Governors' Provinces) Order, 1949 issued on 27 July, 1949. This order was applied to the provincially merged States with effect from 1 August, 1949. Under the States Merger (Governors' Provinces) Order, 1949 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This Court has in several decisions held that Covenants and Merger Agreements with the Indian States are Acts of State and not enforceable under municipal law. lsee State of.Seraikella v.Union of India Anr.( [1951] S.C.R. 474.) Virendra Singh Ors. v. The State of Uttar Pradesh ([1955] 1 S.C.R. 415.) M/s. Dalmia Dadri Cement Co. Ltd. v. 'The Commissioner of Income-tax ([1959] S.C.R. 729) , The State of Saurashtra v. Memon Haji Ismail Haji ([1960] 1 S.C.R. 537), State of Gujarat v. Vora Fiddali Badruddin Mithibarwala([1964] 6 S.C.R. 416) and Nawab Usmanali Khan v. Sagar. mal([1965] 3 S.C.R. 201) Mr.Palkhivala contended that on the accession of Indian States there could be no Act of State between the Dominion of India and the Rulers who acceded to the Dominion and thereafter between the Republic of India and the Rulers who were citizens. This argument is also fallacious. This Court in the same case, State of Gujarat v. Vora Fiddali Badruddin Mithibarwala(1) interpreted the integration of Indian States with the Dominion of India as an Act of State and has applied the law relating to an Act of State as laid down by the Privy Council in a long series of cases. .......... Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution appear to be slightly unrealistic or anachronistic in a Republican Constitution as it deals with citizens and the sovereignty of the people being reposed in the Republic. The founding fathers inserted these four allied Articles as rich hangings in a homely house. The real basis for Article 363 was that when the Constitution recognised the ,guarantee of privy purses and succession to the gaddi in the Merger Agreements and Covenants it was appreciated that if any dispute in regard to such agreements or covenants or any dispute as to any right accruing under or any obligation arising out of any pro-vision of the Constitution relating to such covenants or agreements were allowed to be brought in a court of law, the entire political relationship of the Dominion of India with the Indian States in an aegis of Act of State might be upset and upturned by such litigation in municipal courts and there would be room for regret on many courts. If Article 363 were not inserted litigations would have gone on endlessly as some of the, Orissa Rulers commenced in the State of Seraikella([1951] S.C.R. 474.) case to undo the Orissa merger agreements. The Constitution contemplated political p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be found of such imperfect legal rights when claims are barred by lapse of time or claims are unenforceable because of lack of registration. These imperfect rights and obligations are described in Salmond on Jurisprudence, 12 Ed. at pages 233-234 to be exceptions to the maxim ubi jus ubi remedium because the customary union between the rights and the rights of action has been for some special reasons severed Salmond warns against confusing obligatriness with enforceability. It is because of unenforceability that these rights are sometimes termed imperfect . Take for instance an ordinary contract of a merchant with the Government. If the contract is not in compliance with Article 299 it is unenforceable. The merchant has a mere imperfect right. The ordinary imperfect right is unenforceable because some rule of law declares it to be so. One's rights against the State are un- enforceable, not in this legal sense but in the sense that the strength of the law is none other than the strength of the State and cannot be turned or used against the State whose strength it is . Imperfect rights are not based on morality. Many rights are wrecked on the rock of unenforceability. Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer denote power belonging to the State,, its government and policy. The Executive power has the political facet in many cases. To illustrate the exercise of rights, authority and jurisdiction by virtue of any treaty or agreement (Article 73); Foreign Affairs (Entry 10 in List I; of the Seventh Schedule) Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions in foreign countries (Entry 14 in List I of the Seventh Schedule); War and Peace (Entry 15 in List I of thE Seventh Schedule) and Foreign jurisdiction (Entry 16 in List I of the Seventh Schedule): The power of recognition of Rulership is political because it is exercised by the President in relation to Prince or Chief by whom any Covenant or Merger Agreement was entered into and the necessity for recognition arises from the Covenants and Merger Agreements. It is a political power because it is not limited only to the law of succession or 'custom. The reasons of State Policy will enter the field. It is also a political power because it is not a compulsive power. If the scope of the power permits the President to recognise some one who is not entitled by law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court observed that the High Court had not correctly approached the construction of section 2 by enquiring what the provisions were which that section sought to supersede- and then place upon the section such a construction as would make the rights conferred by it co-extensive with the disability imposed by the superseded provisions. This Court observed that first it would be ascertained as to what the enacting part of the section provides on a fair construction of the words used according to the natural and ordinary meaning and the non-obstante clause, was to be understood as operating to set aside as no longer valid' anything contained in relevant existing laws which were inconsistent with the new enactment. The non-obstante clause must be allowed to operate with full vigour in its own field. In The Dominion of India and Anr. v. Shrinbai A. Irani Anr.( [1955] 1 S.C.R. 206.) section 3 of Ordinance No. 19 of 1946 contained a non-obstante clause with the words notwithstanding the expiration of the Defence of India Act, 1939, and the rules made thereunder, all requisitioned lands shall continue to be subject to requisition-until the expiry of this Ordinance and the appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the existence or extent of a legal right depends. The law in that case was challenged to be ultra vires. The plaintiff denied the validity of the law and the respondent asserted its validity. It was, therefore, a dispute on which the existence of a legal right depended. In the present case the dispute is whether the President has or has not the power to make the order impugned in these proceedings'. The next question Which falls for consideration is the meaning of the words right accruing under , any liability or obligation arising out of , any of the provisions of the Constitution . It is obvious that if any right is said to accrue under or liability is said to arise out of any provision of the Constitution, the matter ends there as far as those words are concerned. The contention' of the petitioner that the President has no power under Article 366(22) to make an order for derecognition is a right asserted by the petitioner under the provisions of the Constitution and it is also the petitioner's contention that the President has no right arising out of Article 366(22) not to make an order of derecognition. It is necessary to have recourse to Article 366(22) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revolution. This power of recognition of Rulership is not traceable to any statutory authority and it is not a power vested in the executive by virtue of a statute. This power is political power in the field of paramountcy to which the Dominion Government and thereafter the Union Government succeeded. Between the execution of the covenants and the commencement of the Constitution the Rajpramukh exercised the power of recognition upon political consideration. (See Umrao Singh Ajit Singh Ji Anr. v. Bhagwati Singh Balbir Singh OrS.,( A.I. R. 1956 S.C. 15.). The Constitution does not mention any right to be recognised nor any ob- ligation to recognise Ruler. In Article 366(22) which is a definition clause is embedded only the political power to recognise a Ruler. Succession to Rulership is not automatic in the sense that one who claims succession by law or custom is bound to be recognised. If it were so, the Constitution would have provided. Again, the words for the time being indicate that the recognition is neither for any fixed duration nor even for the life time of any person nor is, a line of succession is perpetuated. The power of recognition of Rulers, existed durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ip, he was reading into the Constitution, a permanent constitutional mandate for continuance of Rulers under the rubric of recognition of Rulers. Analogies between the President, Vice-President, the Chief Justice and the Judges of this Court, the Judges of the High Court, the Public Service Commission and the Election Commission and the Rulers were drawn to support the theory that Rulership was an institution like the offices mentioned by way of illustration. These are constitutional offices recognised by the Constitution. The sanction of these offices is the Constitution. It is sophistry to speak of Rulership as an institution. When institutions are recognised the Constitution has specifically designated and recognised them by names, like Devaswom in Article 290A, the National Library, the Indian Museum, in List I Entry 62 of the Seventh Schedule, the Banaras Hindu University, the Aligarh Muslim University, the Delhi University in List I Entry 63 of the Seventh Schedule. Article 366(22) has no significance apart from Articles 291 and 362. Inasmuch as there is no legal right to recognition it makes no difference whether there is derecognition of one Ruler or derecognition, of all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claims that he has a right to continue as a Ruler which is a right related to covenants. It was said that if the President derecognises one the President was bound to recognise another person as his successor. In 1956 the Ruler of Baudh in Orissa died. The President decided not to recognise any successor to the Ruler. The widow was granted an allowance and a suitable residence was allotted to her use for her life-time. Again in 1958 when Mahant Digvijay Das of Nandgao died the Rulership of Nandgaon was allowed to lapse. The widow was granted allowance. No suc- cessor to the Ruler was recognised. In the year 1968 when the Ruler of Delath died no successor to the Ruler was recognised. In the month of August, 1970 the Rulership of Malpur was also allowed to lapse. In the case of Baroda the Ruler was. derecognised and during his lifetime his successor was recognised as a Ruler. That was on grounds of misconduct. These cases indicate that no legal right to Rulership was asserted. The President in recognising a Ruler need not follow law of succession and above all there is no legal obligation on the President to appoint a Ruler. The Attorney General and Mr. Mohan Kumarmangalam rightly s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Ujjam Bai (supra) or where the executive act was malafide and for alien purpose as in Pratap Singh's case (supra) or where an order of detention under the Defence of India Act was challenged in violation of the Act and also on the ground that it was malafide as in Makhan Singh's case (supra). The decision of this Court in Dhulabai and others v. The State of Madhya Pradesh([1968] 3 S.C.R. 662) on which Counsel for the petitioner relied is again illustrative of the type of cases where Courts have interfered on the ground that the appointed 'Tribunal did not comply with provisions of the statute or exceeded jurisdiction or failed to observe principles of natural justice. The decision of the House of Lords in the Foreign Compen- sation Commission case (supra) on which the petitioner relied contained a clause in a statute called the Foreign Compensation (Determination and Registration of Claims) Order which provided for determination of compensation by the Commission and contained a section that the determination by the .Commission of 'any application made to them under the Act was not to be called in question in any court of law. It was held that a finality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odies or authorities,- by issuing writs of mandamus, prohibition or certiorari, on the grounds of commanding them to exercise their jurisdiction or not to exceed their jurisdiction or not to usurp any jurisdiction they do not possess or to observe the principles of natural justice or where the courts find that the acts of decisions are tainted by extraneous consideration or collateral reasons or malafide or fraud. In the present case, the petitioners have invoked the juris- diction of this Court under Article 32. Article 32, is excluded by the opening words in Article 363. It was said by counsel for the petitioner that the order of the President was a nullity, the petitioners property rights were invaded, and,' therefore, the jurisdiction of this Court was attracted. The fallacy of the petitioner s submission is in totally overlooking the provisions of Article 363 which exclude in express and unambiguous terms the jurisdiction of this Court notwithstanding any provision of the Constitution. The courts normally leap in favour of stretching the jurisdiction but when the Constitution which invests this Court with jurisdiction with one hand divests it of jurisdiction with another i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se and enjoyment of other rights and privileges mentioned in Articles 291 and 362 respectively. For days there were discussions, debates and disputes at the Bar as to whether there were disputes as to privy purses. The pleading and the affidavit evidence point with unerring accuracy that the petitioners claim privy purse, assert title to privy purse and insist on payment of privy purse guaranteed in covenants and merger agreements and recognised in Article 291 and by reason of provisions contained in Article 366(22) which speaks of recognition of Rulers they ask for relief with regard to continuance of recognition of Rulers and payment of privy purses. It is indisputable that the merger agreements and covenants not only speak of payment of privy purse but also mention guarantee of the Government in that behalf. These covenants and merger agreements were totally unenforceable prior to the Constitution. Article 291 is a constitutional recognition of the guarantee regarding privy purse mentioned in the Covenants and agreements. Article 291 does not create any new 'and independent right of payment of privy purse. Article 291 is related to the covenant and is not unrelated to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur v. The State of Rajasthan and Ors.(1) that in order to give constitutional recognition to the guarantees and assurances under the Covenants and Merger Agreement Articles 362, 363, 131 proviso and 291 were incor- porated in the Constitution. The Covenants and Merger Agreements did not have any legal sanction inasmuch as neither the Government of India Act, 1935 provided for the same nor were these enforceable in municipal courts. The sanction of the Covenants and Merger Agreements was purely political. The treaties in the United States are enforced as law. It is not so in our Constitution nor is it so under the British law. During the British Rule in India political pensions were given to persons in Indian States. They were given because of reasons of State policy. When the Constitution came into force the guarantee for the payment of the sums of money as privy purse contained in the Covenants and Agreements was continued by Article 291 but the esential political character of the privy purse was pre- served by Article 363 by enacting that the guarantee could not be enforced in municipal courts. It might be asked here as to whether any Ruler of an Indian 'State without bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he covenants and merger agreements where payment of any sum has been guranteed. Each covenant has to be examined and construed to give effect to the guarantee mentioned in the covenant 'and recognised in the Article. It will be utterly wrong to equate the words charged on the consolidated fund with a charge by way of security , because Article 291 only gives effect to guarantees in the covenants and agreements by charging the payment on the consolidated Fund. Article 291 cannot be said to create a new right or a new obligation by charging the sum on the consolidated fund because the charge is only in respect of the right and obligation under the covenant and it is therefore neither a new nor an independent right. It was said that the covenants and merger agreements were merely to be referred to for the purpose of identifying the Rulers and the privy purse. The identification is a verbal subterfuge. Assuming Article 291 were a right enforceable a Ruler would have to prove first that he was a Ruler who was recognised by the President and thus entitled to privy purse the payment of whereof was guaranteed by the covenant or the merger agreement. Secondly, he would have to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a Ruler to maintain an action for payment of the entire sum. Article 363 would be an impediment and no court would be able to adjudicate the question. The words charged on and paid out of the consolidated fund are technical Parliamentary ex- pressions for payment out of public revenues. These words have been borrowed from English Parliamentary Practice. These words have a specific legal history since 1816 when Consolidated Fund Act was passed in England and in 1854 the English Act provided in 2 Schedules as charges, payable out of the consolidated Fund and charges upon which vote would lie. Prior to 1935 the system of presenting accounts before the legislature was under four heads, i.e. transferred subjects, reserved subjects voted 'and non-voted items. In 1935 the Government Act, 1935 used the expressed charged in replacement of ,the expression voted . After the Constitution came into existence the same system continued for presentation of the Annual Financial Statement under Article 112(2) and Appropriation Bill under Article 114(1). The Estimates under Article 113(1) were (a) sums required to meet the expenses as expenditure charged upon the consolidated fund and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solidated fund. The charge on the consolidated Fund is for purposes of payment in 'accordance with the guarantee and assurance of payment under the covenants and merger agreements. The right to payment of privy purse arises from recognition by Article 291 of guarantee of payment of privy purse under a covenant. The scheme of Article 291 is similar to Article 290 where the expenses of any court or commission or pension payable to any person who served before or after the commencement of the Constitution in connection with the affairs of the Union or the State are charged on the Consolidated fund. Article 290A which speaks of a sum of ₹ 46,50,000 to be charged on and paid out of the Consolidated Fund of the State of Kerala every year to the Travancore Devaswoin Fund is a different provision because it speaks of payment to a designated person as a part of the Constitution. No such comparable words are to be found in Article 291, namely, that the sums shall be paid to the Rulers. The reasons are two-fold. First, payment of privy purses is under covenants or merger agreements and secondly these payments were charged on the Consolidated Fund of India because the payment was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directing payment of their salaries and therefore the charge on the Consolidated Fund. in respect of such salaries e.g. in Article 112 (d)(i) cannot be intended again as a diction for payment. It was said on behalf of the petitioner that in the covenants and merger agreements, the payment of privy purse was to be free of all taxes whereas under the Constitution privy purse was to be exempt free of all taxes on income and therefore there was a new right. This is totally misreading Article 291 (b) where it is said that the sums so paid to any Ruler shall be exempt from all taxes on income . The words so paid' relate to the slum guaranteed under the covenants and the agreements and to the same sum charged on the Consolidated Fund It is only when payment is made to a Ruler that it shall be exempt from taxes on income That is why the words so paid to any Ruler in Article 291 (b) indicate that when the sums are paid to a Ruler out of the Consolidated Fund the sums shall be exempt from all taxes. The Constitution does not mention payment of Privy Purse to any particular person. One has to turn to the covenant and the merger agreement to have all the particulars of persons, sums g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a). Therefore, the covenants and merger agreements were outside the jurisdiction of municipal courts. The administration of the provincially merged and centrally merged States was by reason of the Extra Provincial Jurisdiction Act 1947 which applied the laws of the Dominion of India to those merged States. It was only by reason of the-merger agreement that the Dominion of India exercised such extra provincial jurisdiction. The Instruments of Accession did not confer such authority. Even when sections 290A and 290B were introduced in the Government of India Act, 1935 administration in the provincially merged States was still carried on the strength of the merger agreement. (See Seraikela case (supra). The merged States were not yet completely integrated with India. The States Merger (Governors' Provinces) Order, 1949 stated that as from the appointed day, i.e.,the date of the com- mencement of the order 1 August, 1949, the States specified in the Schedule shall be administered in all respects as if they form part of the provinces specified in the heading of the Schedule . Again in section 7 of the States Merger (Governors' Provinces) Order, 1949 it is stated that all lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and a special provision was to be given effect to the extent of its scope, leaving the general provision to control cases where the special provision does not apply. The petitioner's contention on existing rights prior to the Constitution as well as continuance thereof falls. Agreement to pay privy purses and to continue privileges of the Princes which were. guaranteed by the Government of India before the Constitution- were all political agreements born out of political bargains to achieve integration of Indian States with the Dominion of India. This political bargain was carried into the Constitution by the insertion of Article 291 for payment of privy purse, Article 362 for continuance of privileges and Article 366(22) for recognition of princes, and the political character was preserved, by inserting Article 363 which bar the jurisdiction of the court in respect of disputes, arising out of covenants and agreements and these Articles which are related to the covenants and agreements. Mr. Palkhivala contended that the order affected the rights of the petitioner under the Wealth Tax Act, the Income-tax Act, the Gift Tax Act, the Hindu Succession Act, the Estates Duty Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. The Trust will not fail. The trustees wilt con- tinue and the Act may have to be amended in a suitable manner. The Civil Procedure Code grants exemption to Rulers from being sued. Exemption from being sued is not personal liberty within the meaning of Article 21. Exemption from being sued is pro-cedural advantage which will no longer be available. Again, s. 197 of the Code of Criminal Procedure is a procedural advantage. In all these cases the petitioner cannot complain in this Court because the position is derived from the recognition of Rulership and Art. 363 is an insurmountable and impenetrable bar. Recognition of Rulership is not a legal right. It is not a right to property. Privy purse is not a legal right to property. There is no fundamental right to privy purse. There is no fundamental right to Rulership.- A series of decisions of this Court have held that Article 363 is a bar to rights and privileges, recognition of Rulership from being agitated in courts. These decisions have spoken the words of the Constitution. The petitions, therefore, fail and are dismissed. Each party will pay and bear its own costs. ORDER In accordance with the opinion of the majority the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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