Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Ors. Vs. Union of India and Anr.
AIR 1971 SC 530, (1971) 1 SCC 85, [1971] 3 SCR 9
Hon’ble Judges/Coram: M. Hidayatullah, C.J., A.N. Grover, A.N. Ray, C.A. Vaidialingam, G.K. Mitter, I.D. Dua, J.C. Shah, J.M. Shelat, K.S. Hegde, S.M. Sikri and Vashishtha Bhargava, JJ.
Date of Decision: 15.12.1970
FACTS: –
On the promulgation of the Indian Independence Act, 1947, the Princely States adjoining the Dominion of India merged with the Dominion of India. The instruments of merger provided for the integration of the States and guaranteed to the Rulers the Privy Purse, succession according to law and custom to the gaddi of the State and personal rights, privileges, dignities and titles. These instruments were concurred in and guaranteed by the Dominion of India. Later, the States integrated with the Union of India under the Constitution of India, 1950, the Rulers abandoning all authority in regard to their territories. Special provisions were enacted in the Constitution regarding Privy Purses and the rights and privileges of the erstwhile Rulers. By article 291, the sum, guaranteed by the Dominion of India to any Ruler as Privy Purse under any covenant or agreement was to be charged on and paid out of the Consolidated Fund of India and the sums so paid were to be exempt from all taxes on income. By article 362 the Parliament, the State Legislatures and the executive of the Union and the States were enjoined to have due regard to the guarantees and assurances under the covenants and agreements between the Governments of the Dominion of India and the heads of the former Indian States. Also, provisions were made in various statutes conferring on the “Rulers” certain privileges and benefits. By Article 366(22) a “Ruler” was defined to mean the prince, chief or other person by whom covenant and agreements were entered into and who “for the time being” was recognised by the President as the Ruler and included any person who “for the time being” was recognised by the President as the successor of such Ruler. Article 363 excluded the jurisdiction of the Supreme Court and all other courts “in respect of any dispute arising out of any provision of a treaty, agreement, covenant etc.” or in any dispute “in respect of any right accruing under or any liability or obligation arising out of any of the provisions of the Constitution relating to any such treaty, agreement, covenant” etc. On September 2, 1970, a Bill instituted 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. 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 Article 368 of the Constitution. The motion for introduction of the Bill was declared lost. A few hours thereafter the President of India, purporting to exercise power under clause (22) of Article 366 of the Constitution signed an instrument withdrawing recognition of all the Rulers. A communication to the effect was sent to all Rulers in India who had been previously recognised under article 366(22) of the Constitution.
The petitioners moved this Court under Article 32 of the Constitution challenging the order of the President “derecognising” them as unconstitutional, ultra vires and void. They contended that the President had no power to withdraw recognition of Ruler once recognised; that assuming the President had such power, exercise of the power was coupled with duty to recognise his successor; that the order of the President “derecognising” all the Rulers en masse amounted to arbitrary exercise of power for a collateral purpose; that the Order violated the constitutional mandates in articles 291 and 362; that article 291 created an obligation in the Union of India to pay the Privy Purse and Privy Purse was property; and that the Order being one without authority of law infringed the guarantee of the fundamental rights under Articles 19(1)(f), 21 and 31 of the Constitution. The Union of India 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 agreement and the privy purse was in the nature of a political pension; that in recognising or derecognising a ruler the President exercised a political power which was a sovereign power and that the rights and obligations were liable to by varied or repudiated in accordance with “State policy”; that the jurisdiction of the Courts to enforce rights and obligations arising out of the covenant was excluded, because, the rights and obligations arose out of act of state; that the concept of paramountly of the British Crown was inherited by the Union of India and therefore recognition of Rulership was a “gift of the President”; and further that the petitioners stood excluded by article 363, for, they were seeking either to enforce the covenants and agreements or were seeking to enforce the provisions of the Constitution “relating to” such covenants.
ISSUE: –
Whether the Act of the President in derecognising rulers from getting privy purse is unconstitutional, ultra vires and void?
JUDGMENT: –
Article 366(22) neither expressly nor by implication places the power in the hands of the President to say that although a Ruler is in existence or a successor is available there shall be no ruler of any particular state. The definition contemplates the existence of the Ruler “for the time being”. The phrase “for the time being” cannot mean that any person can be appointed who has no claim whatever or that temporary appointments may be made or that no appointment need be made. The continuity of a Ruler of an Indian State is obligatory so long as the Ruler is alive or a successor can be found. The obligation to recognise a Ruler is bound up with the other guarantees contained in articles 291 and 362 and 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.
The right to recognise a ruler, from out of several claimants, is not an act of paramountcy. The selection has to be in accordance with law and custom. The Constitution gave the right to the President to recognise a Ruler for the time being; but it cannot be stretched to give a paramountcy of the same character as that enjoyed by the British Crown. To claim such paramountcy 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. The 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 short, when the guarantees were given by the Constitution, paramountcy if any went out. Article 362 is the converse of paramountcy inasmuch as it compels the two limbs of government to have “due regard”’ to the guarantees and assurances given to the Rulers. Nor can article 363 be said to “recreate” paramountcy. That article was intended to keep certain matters outside the jurisdiction of the courts. The Rulers are citizens of India and the President or the Government of India cannot invoke the doctrine of paramountcy to sustain an illegal inroad upon the rights of citizens.
The argument based on act of state is not of any more validity. An ’Act of State’ is not available against a citizen. It is a sovereign act which is neither grounded in law nor does it pretend to be so. It is “a catastrophic change constituting a new departure”. Since there are no sovereign or political powers under our Constitution every action of the executive limb of government must seek justification in some law. The very existence of article 363, which it is said incorporates some kind of paramountcy or act of state, shows that there is no political power outside the law; otherwise an additional bar would hardly have been necessary.
Covenants and agreements cannot be said to create “imperfect obligations” since the Constitution takes the matter into itself and gives them its own guarantees. In so far as those guarantees became a part of our Constitution and were included in various statutes they would be enforceable according to the tenor of the Constitution and other laws subject, of course, to any bar created by article 363.
The argument on behalf of the Union of India that article 291 only lays down the source and manner of payment but creates no right to claim, receive or enforce payment is a complete misreading of the article. Article 291 makes the amount payable to the Ruler and, therefore, creates a right in him to demand it. The words “shall be charged and paid out of etc.” make the payment obligatory and when expanded the words read “shall be charged on and shall be paid out of” etc. The direction to pay is in no uncertain terms. The recipient is mentioned in cl. (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, you can get further info from the Metric Accountants . The article is self-supporting and self-ordaining. The result of charging a sum on the Consolidated Fund is to provide that this destination shall not be altered even by vote of Parliament and the charging is sufficiently effective for ensuring the right application.
Article 363 does not bar relief to the petitioners. The words provisions of this Constitution’ in the latter part of article 363 are not left unqualified. The draftsmen would have referred to the numbers of the articles if disputes of every kind under those articles stood excluded. The requirement is that it must be a provision “relating” to a treaty, covenant etc. The words ’relating to’ mean that the provision must bear upon treaties etc. as its dominant purpose or theme; it is not sufficient if treaties are mentioned there for some collateral purpose. So tested, (a) Article 362 is a provision relating to a treaty, covenant etc. Its dominant theme is ’the rights, privileges and dignities of the Rulers under covenants and agreements and, therefore the provision is one relating to covenants and agreements. (b) Article 366(22) has for its dominant purpose the selection of Rulers through the application of the covenant and agreements. When the President acts-within the four corners of his authority the matter is barred by article 363. What the President has done is to take away recognition ’from all Rulers and such a power does not flow from article 366(22) and the bar of article 363 does not apply to such a dispute. The dispute arises neither from the covenants etc. nor from the provisions of the Constitution. Therefore, it ceases to have the protection of article 363. (c) Article 291 is not a provision relating to covenants and agreements but a special provision for the source of payment of Privy Purse by charging them on the Consolidated Fund and for making the payment free of taxes on income; it does not in its dominant purpose and theme answer the description in the latter part of article 363. The mention in Article 291 of covenants and agreements is for its own purpose so that the amounts need not be specified.
The obligation to pay the Privy Purse being absolute the right to claim when due subsists in each ruler. As soon as an appropriation Act is passed there established credit-debt and the outstanding Privy Purse becomes the property of the Ruler in the hands of the government. It is also a sum certain and absolutely payable. Therefore Privy Purse is property and any action to deprive the Rulers of their Privy Purses must be an infringement of articles 19 and 31.
HELD: –
The Order of the President “derecognising” the Rulers is ultra vires and illegal and violates the constitutional provisions.
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