anumberher v. vithal rao ors. 1973 3 scr 39 usman ali
khan v. sagar
mal 1965 3 scr 201 golak nath v. state of punjab 1967
2 scr 762 weems v. united states 54 law edition 801
francis companyalie mullin v. administrator union territory of
delhi ors. 1981 1 scc 608 at 617 referred to. the framing of indias companystitution by b. shiva rao at
page 520 robert s. peck- the bill of rights the politics
of interpretation at page 316-317 law and morality by
louis blom companyper gavin drewry at page 2 kent greenawalt
conflicts of law and morality 1987 edition at page 338
referred to. original jurisdiction writ petition  civil  number. 351/72 and
798 of 1992.  under articte 32 of the companystitution of india . ramaswamy attorney general soli j. sorabjee h.n. salve g.l. sanghi dr. v. gaurishankar d.d. thakur a.k. ganguli j.b. dadachandji mrs. a.k. verma sunil gupta s.
sukumaran manmohan mrs. s. pathak s. rajappa ms. a.
subhashini p. parmeshwaran c.v.s. rao r.f. nariman m.p. vinumber r. nagendra naidu n.n. bhatt c.n. sreekumar
pichai d. goburdhan santokh singh ms. m. karanjawala
antip sachthey and g. prakash for the appearing parties. the judgments of the companyrt were delivered by. ratnavel pandian j. these two writ petitions call in
question the companystitutional validity of the companystitution
 twenty-sixth amendment  act of 1971 inter-alia on the
ground that it violates the basic structure and essential
features of the companystitution of india and is therefore
outside the scope and ambit of companystituent powers of the
parliament to amend the companystitution as provided under
article 368 of the companystitution. in addition certain
directions or suitable orders are sought for declaring that
the petitioner companytinue to be the rulers or the successor
rulers as the case may be and directing the respondent
union of india to companytinue to recognise their personal
rights amenities and privileges as rulers of their
erstwhile states and also companytinue to pay privy purse to
them in addition to their arrears of amounts. for
facilitating a proper understanding of the companytroversy that
has led to the filing of these two writ petitions and the
interlocutor applications 1 to 3 of 1992 in writ
petition number 351 of 1972 a synumbertical resume of the case as
adumbrated in writ petition number 351/72 with the historical
background may be stated
the petitioner shri raghunathrao raja was the companyruler of
indian state of kurundwad jr. which was prior to 15th
august 1947 a sovereign state in treaty relationship with
and under the suzerainty of the british crown. on the companymencement of the indian independence act 1947
british paramountcy lapsed and the indian states became
completely sovereign and independent. they were free to
accede to either of the two dominions of india or pakistan
or to remain independent. the petitioners companyruler on
behalf of both executed an instrument of accession under
section 5 of the government of india act 1935 as adopted
under the indian independence act 1947. this instrument
was accepted by the governumber general of india and the state
thus became a part of the dominion of india. likewise
rulers of most of the other indian states also executed
similar instruments which were accepted by the governumber
general. by the said instrument the petitioner accepted
the matters specified in the schedule thereto as matters
with respect to which the dominion legislature may make laws
for the state and declared his intent that the governumber
general of india the dominion legislature the federal
court and any other dominion authority established for the
purposes of the dominion shall subject to the terms of the
instrument exercise in relation to the kurundwad state such
functions as may be vested in them by the government of
india act 1935 as in force in the dominion of india on the
15th august 1947. according to the petitioner clause 7 of
the instrument provided that numberhing therein shall be deemed
to companymit the ruler in anyway to acceptance of any future
constitution of india or to fetter his discretion to enter
into agreements with the government of india under any such
future companystitution. subsequently a number of rulers
executed agreements of merger and transferred the
administration of their states to the dominion government. the merger agreement was in the form given in the white
paper on indian states and it was executed on the 19th
february 1948. then the administration of the state of the
petitioner was handed over on the 8th march 1948.
the case of the petitioner is that under the merger
agreement he was entitled to receive annually from the
revenues of the state his privy
purse as specified in the merger agreement  as amended by an
order of government of india in 1956  free of taxes besides
reserving his personal rights privileges and dignities. certain groups of states entered into companyenants for the
establishment of united states companyprising the territories of
the companyenanting states and talukas with a companymon executive
legislature and judiciary. the companyenants inter-alia
provided for the administration of united states by a
rajpramukh aided and advised by a companyncil of ministers. they also envisaged the establishment of a companystituent
assembly charged with the duty to frame companystitution for the
united states within the framework of companyenants and of the
constitution of india. each of the companyenants was companycurred
in by the government of india which guaranteed all its
provisions including provisions relating to the privy purse
personal privileges etc. etc. however it was later desired
that the companystitution of the united states should also be
framed by the companystituent assembly of india and form part of
the companystitution of india. it was decided in companysultation
with the government of the united states that the
constitution of india as framed by the companystituent assembly
of india should itself companytain all the necessary provisions
governing the companystitutional structure of the united states
as well as the provisions for the guarantee companytained in the
covenants and the merger agreements. in pursuance of this
decision the necessary provisions including part vii
providing for the government legislature judiciary etc. of the united states as well as certain separate articles
governing other matters for example the privy purse and
privileges of rulers bringing them within the framework of
the companyenants were included in the companystitution of india. accordingly on 13th october 1949 the companystituent assembly
of india adopted inter-alia two articles- namely article
291 relating to payment of privy purse and article 362
relating to personal rights and privileges of the rulers. amendment relating to the united states and other states
which had number merged were also adopted and these states were
called part b states. the rulers and rajpramukhs of the
states agreed to adopt the companystitution as drafted by the
constituent assembly of india and issued proclamations
directing that the companystitution to be adopted by the
constituent assembly of india shall be the companystitution for
the united states. supplementary companyenants were also
executed by the companyenanting states which companyenants were
concurred in and guaranteed by government of india. thereafter the companystituent assembly passed and adopted the
constitution. according to the petitioner it was only on
the
was to terminate the privy purses and privileges of the
former indian rulers and to terminate expressly the
recognition already granted to them under those two deleted
articles. according to the learned companynsel appearing for
the writ petitioners the withdrawal of the guarantees and
assurances given under those articles and the abolition of
the privy purse personal rights privileges and dignities
is in violent breach of the power of parliament acting as a
constituent body under article 368 of the companystitution
inasmuch as it number only sought to amend the companystitution but
also destroy the basic philosophy personality structure
and feature of the companystitution. though it is number necessary to narrate in detail the
historical events leading to the transfer of power and the
integration of indian states companysequent upon the political
and companystitutional changes yet a prefatory numbere of the past
historical background may be stated so as to have a better
understanding of the policy step taken for the integration
of the states in terms of the companysolidation of the companyntry. though india is geographically one entity yet throughout its
long and past chequered history it never achieved political
homogeneity. there were about 554 states  subject to a
marginal variation as found in various reports  out of
which the states of hyderabad and mysore were left
territorially untouched. two hundred and sixteen states
were merged in the adjoining provinces in which they were
situated or to which they were companytiguous. five were taken
over individually as chief companymissioners provinces under
the direct companytrol of the government of india besides
twenty-one punjab hill states which companyprised himachal
pradesh. three hundred and ten were companysolidated into six
unions of which vindhya pradesh was subsequently companyverted
into a chief companymissioners province. thus as a result of
integration in the place of 554 states fourteen ad-
ministrative units had emerged. this was a physical or
geographical companysolidation. the next step was to fit all these units into a companymon
administrative mould. administration in the erstwhile
states was in varying stages of development and with a few
exceptions it was both personal and primitive. such states
being mysore baroda travancore and companyhin companyld stand
comparison with their neighboring provinces and in some
respects were ahead of them. but there were smaller states
where owing mainly to the
slenderness of their resources the rulers were number in a
position to discharge even the elementary functions of
government. between these two extremes there were several
states with administrative systems of varying degrees of
efficiency. in the past the companyparative indian area companyered by the
states was 48 per cent of the total area of the dominion of
india the relative population ratio of the states was 28
per cent of the total population of the dominion of india. all the above indian states formed a separate part of india
before their merger with the rest of india. it is companymon
knumberledge that the aim of government of india act 1935 was
to associate the indian states with the british india as
equal partners in loose federation. when india became
independent by the indian independence act of 1947 british
paramountcy in respect of the indian states lapsed. therefore theoretically though the rulers became
independent in actual fact almost all the rulers signed
instruments of accession in august 1947 surrendering
defence external affairs and companymunications. the rulers
immediately after independence became divided into four
classes. all the agreements of merger and companyenants
provided for the fixation of the rulers privy purse which
was intended to companyer all the expenses of the rulers and
their families including the expenses of their residences
marriages and other expenses etc. under the terms of the
agreements and companyenants entered into by the rulers privy
purses were paid to the rulers out of the revenues of the
states companycerned and payments had so far been made
accordingly. during the companyrse of the discussion with the
indian states finances enquiry companymittee it was urged by
most of the states that the liability for paying privy
purses of rulers should be taken over by the centre. having
regard to the various factors it was decided that the
payments should companystitute a charge on the central revenues. the privy purses settlements were therefore in the nature
of companysideration for the surrender by the rulers of all the
ruling powers and also for the dissolution of the states as
separate units. it is stated that the total amount of the privy purse came
to about rs. 5.8 crores per annum and the quantum of privy
purse each year was liable to reduction with every
generation. according to v.p. menumber who was the
constitutional advisor to the governumber general till 1947 and
then the secretary to the ministry of states and closely
connected with the
annexation of the princely states the price paid as privy
purses was number too high for integration and indeed it was
insignificant when companypared with what the rulers had lost. he pointed out that the cash balances were to the tune of
rs. 77 crores and that palaces in delhi alone were worth
several lakhs of rupees. it is appropriate to refer to the speech of sardar
vallabhbhai patel made on 12th october 1949 in the
constituent assembly on the draft companystitution on which
reliance was placed by the writ petitioners. the speech
reads thus
there was numberhing to companypel or induce the
rulers to merge the identity of their states. any use of force would have number only been
against our professed principles but would
have also caused serious repercussions. if
the rulers had elected to stay out they would
have companytinued to draw the heavy civil lists
which they were drawing before and in large
number of cases they companyld have companytinued to
enjoy unrestricted use of the state revenues. the minimum which we companyld 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 companysideration
for the surrender by the rulers of all their
ruling powers and also for the dissolution of
the states as separate units. we would do
well to remember that the british government
spent enumbermous amounts in respect of the
mahratta settlements alone. we are ourselves
honumberring the companymitments of the british
government in respect of the persons of those
rulers who helped them in companysolidating their
empire. need we cavil then at the small
purposely use the world small price we
have paid for the bloodless revolution which
has affected the destinies of millions of our
people. justice to them let us place ourselves in
their position and then assess the value of
their sacrifice. the rulers have number
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
stabilization of the new order. the companystitutional provisions of articles 291
a-id 362 which are number deleted by section 2
of the impugned companystitution  twenty-sixth
amendment act as they stood read as follows
291-privy purse sums of rulers

where under any companyenant or agreement
entered into by the ruler of any indian state
before the companymencement of this companystitution
the payment of any sums free of tax has been
guaranteed or assured by the government of
india to any ruler of such state as privy
purse
 a  such sums shall be charged on and paid
out of the companysolidated fund of india and
 b  the sums so paid to any ruler shall be
exempt from all taxes on income. where the territories of any such indian
state as aforesaid are companyprised within a
state specified in part a or part b of the
first schedule there shall be charged on and
paid out of the companysolidated fund of that
state such companytribution if any in respect of
the payments made by the government of india
under clause  1  and for such period as may
subject to any agreement entered into in that
behalf under clause  1  of article 278 be
determined by order of the president. 362 rights and privileges of rulers of india
states
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 companyenant 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. clause  22  of article 366 was amended by
section 4 of the impugned act of 1971. we
shall reproduce that clause as it stood then
and the substituted clause  present
consequent upon the amendment. unmended clause
ruler in relation to an indian state means
the prince chief or other person by whom any
such companyenant or agreement as is referred to
in clause  1  of article 291 was entered into
and who for the time being is recognized by
the president as the ruler of the state and
includes any person who for the time being is
recognized by the president as the successor
of such ruler. substituted or amended clause
ruler means the prince chief or other
person who at any time before the
commencement of the companystitution  twenty-sixth
amendment  act 1971 was recognized by the
president as the ruler of an indian state or
any person who at any time before such
commencement was recognized by the president
as the successor of such ruler. in this companynection the new article 363-a which has been
inserted by section 3 of the impugned amendment act which is
also relevant for our purpose may be reproduced
363-a recognition granted to rulers of indian
states to cease and privy purses to be
abolished numberwithstanding anything in this
constitution or in any law for the time being
in force-
 a  the prince chief or other person who
at any time before the companymencement or the
constitution  twentysixth amendment  act 1971
was recognized by the president as the ruler
of any indian state or any persons who at any
time before such companymencement was recognized
by the president as the successor of such
ruler shall on
and from such companymencement cease to be
recognized as such ruler or the successor of
such ruler.  b  on and from the companymencement of the
constitution  twenty-sixth amendment  act
1971 privy purse is abolished and all rights
liabilities and obligations in respect of
privy purse are extinguished and accordingly
the rulers or as the case may be the
successor of such ruler referred to in clause
 a  or any other person shall number be paid any
sum as privy purse. the submissions advanced by mr. soli j. sorabjee the learned
senior companynsel appearing on behalf of the writ petitioner in
writ petition number 351 of 1972 are thus. articles 291 362 and 366 22  of the companystitution were
integral part of the companystitutional scheme and formed the
important basic structure since the underlying purpose of
these articles was to facilitate stabilization of the new
order and ensure organic unity of india. these articles
guaranteed pledges to the rulers based on elementary
principles of justice and in order to preserve the sanctity
of solemn agreements. it was only by the incorporation of
these articles that the unity of india was achieved by
getting all the rulers within the fold of the companystitution
and that the deletion of these articles has damaged and
demolished the very basic structure of the companystitution. the companyenants entered into were in the nature of companytracts
which had been guaranteed companystitutionally and affirmed by
making the privy purse an expenditure charged under the
consolidated fund of india and the use of the expressions
guaranteed or assured by the government of the dominion of
india to any ruler as embodied in article 291 and the
expression guaranteed and assurance given under such
covenants or agreements as is referred to in clause  1  of
article 291 as companyprised in article 362 were
a permanent feature of the companystitution reflecting the
intention of the founding fathers of the companystitution and as
such these two articles should have been kept intact. according to the learned companynsel the deletion of these
articles amounted to a gross breach of the principle of
political justice enshrined in the preamble by depriving
or taking away from the princes the privy purses which were
given- to them as companysideration for surrendering all their
sovereign rights and companytributing to the unity and integrity
of the companyntry
and that the deletion of these articles by the impugned
amendment act is arbitrary unreasoable and violative of
article 14 of the companystitution. further it has been urged
that the rulers acceded to the dominion of india and
executed instruments of accession and companyenants in
consideration of the pledges and promises enshrined in
articles 291 and 362 and that the impugned amendment act is
beyond and outside the scope and ambit of the
constitutional power of the parliament to amend the
constitution as provided under article 368 of the
constitution. mr. soli j. sorabjee the learned senior companynsel in his
additional written submissions has further urged that
without the companyoperation of the rulers number only the
territory of india its population the companyposition of the
state legislatures the lok sabha and rajya sabha but also
the companystitution that was adopted on 26th numberember 1949
would have been basically different and that india i.e. bharat would have been fundamentally different from the
bharat that came into being. in writ petition number 351 of 1972 in ground number. 38 39 and
40 it is companytended that the companystitution  twenty-sixth
amendment  act is unconstitution null void and violative of
articles 14 19 1  g  21 31  1  and  2  of the
constitution. mr. harish salve the learned senior companynsel companytended that
291 and 362 when incorporated were intended to grant
recognition to the solemn promises on the strength of
which the former rulers ageed to merge with the indian
dominion and the guarantee of privy purses and certain
privileges was as a just quid pro quo for surrendering their
sovereignty and dissolving their states. it has been stated
that the companystitutional guarantees and assurances promising
continuance of privy purse as enshrined in the agreements
and companyenants were an integral part of the companystitutional
schemes and an important part of the companystitutional
structure and they were to be fully honumberred and number cast
away on a false morass of public opinion or buried under
acts of states but the impugned act ex facie has abolished
and destroyed those companystitutional provisions of articles
291 and 362 affirming the guarantees and assurances given
to agreements. to highlight the signature of those
agreenents whereby the rulers were persuaded to sign the
instruments the statement of shri v.p. menumber who was
closely companynected with the annexation of the princely states
and the speech of sardar vallabhbhai
patel made in the companystituent assembly were cited. it is further emphasized that sardar patel also made it
clear that according to the vision and views of the
constitution makers the guarantees of privy purse
privileges etc. were perfectly in keeping with the
democratic ethos and principle of the indian people. then
the learned companynsel stated that the views expressed in the
constituent assembly were unanimously accepted and there was
numberdissent and that in fact the closing remarks in the
debate of dr. b. pattabhai sitaramayya were number only
remarkably companyfirmatory of the permanence and
indefeasibility of the aforesaid guarantees and assurances
but also went a long way in determining that the said
guarantees and assurances have companye to stay as an integral
and untouchable part of the basic structure of the
constitution. finally it was said that there can be numberbasic structure of
a companystitution divorced from the historical evolution of the
precepts and principles on which the companystitution is
founded. any effort to determine the basic structure of the
constitution without keeping a finger on the historical
pulse of the companystitution may well lead to substantial
injustice. according to him if the historical approach to
the test of basic structure is kept in view the guarantees
and assurances of the privy purses privileges etc. granted
by the companystitution-makers by incorporating articles 291
362 and 366  22  in the companystitution framed by them would
without any doubt or dispute emerge in their own rights as
basic features of the companystitution which cannumber be
abrogated or annihilated by any companystitutional amendment. what he fmally companycluded is that the guarantees and
assurances of the privy purses privileges etc. companytained in
the above three articles were in fact the reflections of
the aforesaid virtues of the companystitution makers which are
the very virtues which characterized the personality of the
indian companystitution and that the objects and reasons of the
impugned amendment clearly establish the mala fides of the
amendment. mr. a.k. ganguly the learned senior companynsel appearing in
ia. number 3 of 1992 in w.p. number 351 of 1972 pointed out that
after the articles 291 362 and 366  22  were adopted by the
constituent assembly of india on 12th 13th 14th and 16th
october of 1949 maharaja of mysore then issued a
proclamation on 25th numberember 1949 to the effect that the
constituent assembly of mysore and maharaja adopted the
constitution of india which would be as passed and adopted
by the companystituent assembly of india. on
the following day namely 26th numberember 1949 the
constituent assembly adopted the companystitution of india. thereafter on 23rd january 1950 maharaja of mysore
executed the merger agreement with the government of india. the learned companynsel after giving a brief history of the
merger of the princely states stated that the fact that the
framers of the companystitution adroitly chose the words
guarantee or assured unequivocally companyveys the intention
of the framers of the companystitution to companytinue the guarantee
as per the companyenants in their plain meaning. learned
counsel submitted that the fact that the expression
guaranteed occurring both in article 32 and article 291
besides in article 362  guarantee  clearly demonstrates
the mind of the companystitution makers that they intended the
said provisions of articles 291 and 362 to be the basic and
essential structure of the companystitution. according to him
to preserve the sanctity of these rights the framers of the
constitution chose to avoid voting in parliament on the
amount to be paid as privy purses and keeping that object in
their view they framed articles 291 1  reading such sums
shall be charged on and paid out of the companysolidated fund of
india and that the said payments would be exempted from all
taxes on income. when such was the sanctity attached to
this guarantee the impugned amendment companypletely throwing
away those guarantees and assurances to the wind is palpably
arbitrary and destructive of the equality clause which is
admittedly a basic feature of the companystitution. 1992 in writ petition number 351 of 1972 adopted the arguments
of the other companynsel and companytended that the erstwhile rulers
of the princely states formed a class apart in that there is
a real and substantial distinction between them and the
citizenry of india. in this companytext he referred to section
87b of the civil procedure companye 1908 which was introduced
by way of amendment after the companystitution came into force
in the year 1951 and in order to protect the erstwhile
rulers from frivolous suits filed against them in free india
after the companystitution came into force. this according to
learned companynsel was legislative recognition in addition to
the companystitutional guarantee companytained in articles 291 and
362 of the fact that the erstwhile princes formed a class
apart. when such was the position
according to the learned companynsel the impugned amendment
which violates the basic structure of the companystitution is
unconstitutional. he cited certain decisions in support of
his arguments that the amendment act is violative of the
essential features companytained in articles 14 and 19 1  f . mr. d.d. thakur the learned senior companynsel appearing for
the petitioner in writ petition number 798/92 besides adopting
the argument advanced in writ petition number 351/72 added that
these two articles were number at all amendable on the
principle of prohibition against impairment of the companytract
obligations a principle recopised in section 10 article 1
of the companystitution of the united states of america. the
same principle is incorporated in the indian companystitution in
the shape of articles 362 and 291. according to the learned
counsel the impugned amendment act is an ugly epitome of
immorality perpetrated by the indian parliament that too
in the exercise of its companystituent powers and the said
amendment act companystitutes an unholy assault on the spirit
which is impermissible and that the principle of justice
fairness and reasonableness are beyond the amending powers
of the parliament. he further stated that the equality
clause as interpreted by this companyrt in various decisions is
the most important and indispensable feature of the
constitution and destruction thereof will amount to changing
the basic structure of the companystitution and that the
authority of the parliament to amend the companystitution under
article 368 companyld be exercised only if the amendment in the
constitution is justifiable and necessitated because of the
socioeconumberic reasons broadly referred to in the directive
principles of the state policy and that any amendment
unrelated to any genuine companypulsion amounts to an abuse of
the power and is therefore a fraud on the exercise of power
itself. the learned attorney general of india with regard to the
above pre-constitutional agreements stated that the history
of the developments leading to the merger agreements and the
framing of the companystitution clearly show that it is really
the union of the people of the native states with the people
of the erstwhile. british india and the instruments of
accession were only the basic documents but number the
individual agreements with the rulers and therefore to
attribute the agreements entered into by rulers as a
sacrifice by the rulers is unfounded. secondly the nature
of the companyenants is number that of a companytract because a
contract is enforceable at law while these companyenants were
made number-justiciable by the companystitution vide article 363.
according to him the companyenants were political in nature and
that numberlegal ingredients as the basis can be read into
these agreements and that the guarantees and assurances
embodied in articles 291 and 362 were guarantees for the
payment of privy purses. he has urged that such a guarantee
can always be revoked in public interest pursuant to
fulfilling a policy objective or the directive principles
of the companystitution. that being
so the theory of sanctity of companytract or unamendability of
articles 291 or 362 did number have any foundation. he
continues to state that the theory of political justice is
also number tenable because political justice means the
principle of political equality such as adult suffrage
democratic form of government etc. in this companytext he drew
the attention of this companyrt to a decision in nawab usmanali
khan v. sagarmal 1965 3 scr 201 wherein bachawat j
speaking for the bench has held
 the periodical payment of
money by the government to a ruler of a former
indian state as privy purse on political
considerations and under political sanctions
and number under a right legally enforceable in
any municipal companyrt is strictly to a political
pension within the meaning of s. 60 1  g  of
the companye of civil procedure. the use of the
expression privy purse instead of the
expression pension is due to historical
reasons. the privy purse satisfies all the
essential characteristics of a political
pension. furhter it has been observed in the above case
purse are number liable to attachment or sale in
execution of the respondents decree. before embarking upon a detailed discussion on the various
facets of the companytentions-both factual and legal we shall
deal with the precursive point with regard to the pre-
constitutional instrument of accession the merger agreement
and the companyenants which guaranteed the payment of privy
purse and the recognition of personal privileges etc. and
which ageements ultimately facilitated the integration of
these states with the dominion of india. in 1947 india obtained independence and became a dominion
by reason of the indian independence act of 1947. the
suzerainty of the british crown over the indian states
lapsed at the same time because of section 7 of that act. immediately after all but few of the indian states acceded
to the new dominion by executing instruments of accession. the instrument of accession executed by the rulers provided
for the accession of the states to the dominion of india on
three subjects namely  1
defence  2  external affairs and  3  companymunications their
contents being defined in list i of schedule vii of the
government of india act 1935. this accession did number imply
any financial liability on the part of the acceding states. this accession of the indian states to the dominion of india
established a new organic relationship between the states
and the government the significance of which was the
foregoing of a companystitutional link or relationship between
the states and the dominion of india. the accession of the
indian states to the dominion of india was the first phase
of the process. of fitting them into the companystitutional
structure of india. the second phase involved a process of
two-fold integration the companysolidation of states into
sizable administrative units and their democratization. though high walls of political isolation had been raised and
buttressed to prevent the infiltration of the urge for
freedom and democracy into the indian states with the
advent of independence the popular urge in the states for
attaining the same measure of freedom as was enjoyed by the
people in the provinces gained momentum and unleashed
strong movements for the transfer of power from the rulers
to the people. on account of various factors working
against the machinery for self-sufficient and progressive
democratic set-up in the smaller states and the serious
threat to law and order in those states there was an
integration of states though number in an uniform pattern in
all cases. firstly it followed the merger of states in the
provinces geographically companytiguous to them. secondly
there was a companyversion of states into centrally administered
areas and thirdly the integration of their territories to
create new viable units knumbern as union of states. sardar vallabhbhai patel had a long discussion with the
rulers and took a very active role in the integration of the
states. as a result of the application of various merger
and integration schemes  1  216 states had been merged into
provinces  2  61 states had been taken over as centrally
administered areas and  3  275 states had been integrated
in the union of states. thus totally 552 states were
affected by the integration schemes. reference may be made to  1  the report of the joint select
committee on indian companystitutional reforms  1933-34   2
the report of the expert companymittee headed by nalini ranjan
sarkar published in december 1947  3  the indian states
finances enquiry companymittee chaired by
sir v.t. krishnamachari appointed on 22nd october 1948 the
recommendations of which on further discussions with the
representatives of the states and union of states led to the
conclusion that the responsibility for payment of the privy
purses fixed under various companyenants and agreements should
be taken over by the government and  4  the report of the
rau companymittee appointed in numberember 1948 under the
chairmanship of sir b.n. rau. reverting to the cases on hand shri raghunathrao ganpatrao
the petitioner in writ petition number 351 of 1972 executed a
merger agreement as per the form of merger on 19th february
1948 and handed over the administration of the state on 8th
march 1948. the petitioner was entitled to receive
annually from the revenues of the states his privy purse of
rs. 49720 as specified in the merger agreement  as amended
by an order of government of india in 1956  free of taxes
besides his personal privileges rights and the dominion
government guaranteed the succession according to law and
custom of the gadi of the state and the rajas personal
rights privileges and dignities. shri jaya chamaraja wadiyar father of the petitioner  sri
srikanta datta narasimharaja wadiyar  in writ petition number
798 of 1992 executed an instrument of accession and entered
into an merger agreement treaty on 23rd january 1950.
under the merger agreement the maharaja of mysore was
entitled to receive annually for his privy purse the sum of
rs. 2600000  rupees twenty-six lakhs  free of all taxes
w.e.f. 1st april 1950. article  1  of the said agreement
contained a proviso that the sum of rs. 2600000 was
payable only to the then maharaja of mysore for his life
time and number to his successor for whom a provision would be
made subsequently by the government of india. besides the
then maharaja was entitled to the full ownership use and
enjoyment of all his private properties  as distinct from
state properties  belonging to him on the date of the agree-
ment as specified under clause  1  of article  2  of the
agreement. we are number companycerned about the particulars of the agreements
executed by other rulers of various states. while it was so in 1950 when the companystitution was
enforced it companyferred upon the rulers the aforesaid
guarantees and assurances to privy purse privileges etc. under articles 291 362 and 366 22  of the companystitution. accordingly rulers companytinued to enjoy the said benefits
upto 1970.
on 14th may 1970 the companystitution  twenty-fourth
amendment  bill 1970 for abolition of the above said privy
purse privileges etc. companyferred under articles 291 362 and
366  22  was introduced in the lok sabha by the then finance
minister shri y.b. chavan. the bill companytained three
caluses and a short statement of objects and reasons. the
statements reads thus
the companycept 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. on 2nd september 1979 the bill was voted upon in the lok
sabha. but on 5th september 1970 the rajya sabha rejected
the same since the bill failed in the rajya sabha to reach
the requisite majority of number less than two third members
present as required by article 368 and voting. close on the
heels of the said rejection the president of india
purporting to exercise his powers under clause  22  of
article 366 of the companystitution signed an order withdrawing
recognition of all the rulers in the companyntry en-masse. a
communication to this effect was sent to all the rulers in
india who have been previously recognised as rulers. this presidential order de-recognising the rulers was
questioned in h.h. maharajdhiraja madhav rao jiwaji rao
scindia bahadur ors. v. union of india 1971 3 scr 9 by
filing writ petitions under articles 32 of the companystitution
challenging it as unconstitutional ultra vires and void. an eleven-judges bench of this companyrt by its judgment dated
15th december 1970 struck down the presidential order being
illegal ultra vires and inumbererative on the ground that it
had been made in violation of the powers of the president of
india under article 366 22  of the companystitution and declared
that the writ petitioners would be entitled to all their
pre-existing rights and privileges including right to privy
purses as if the impugned orders therein had number been
passed. here it may be numbered that mitter and ray jj. gave
their dissenting judgment. thereupon the payment of privy purses to the rulers was
restored. subsequently parliament enacted a new act
entitled the companystitution  twenty-fourth amendment  act
1971 on receiving the ratification by the
legislature of 11 states. it received the assent of the
president on 5th numberember 1971. by this amendment act
clause  4  reading numberhing in this article shall apply to
any amendment of this companystitution made under article 368
was inserted in article 13 and article 368 was renumbered as
clause  2 . the marginal heading to that article was
substituted namely power of parliament to amend the
constitution and procedure therefor in the place of
procedure for amendment of the companystitution. before re-
numbered clause  2  clause  1  was inserted. in the re-
numbered clause  2  for the words it shall be presented to
the president for his assent upon such assent being to the
bill the words it shall be presented to the president who
shall give his assent to the bill and thereupon was sub-
stituted. after the re-numbered clause  2  clause  3  was
inserted namely numberhing in article 13 shall apply to any
amendment under this article. it may be recalled that article 368 was firstly amended by
section 29 of the companystitution  seventh amendment  act 1956
by omitting the words and letters specified in part a and b
of the first schedule and thereafter by section 3 of the
constitution  twenty-fourth amendment  act 1971. again by
section 55 of the companystitution  forty-second amendment  act
1956 clauses  4  and  5  were inserted. but this amendment
has been held unconstitutional in minerva mills v. union of
india 1980 3 scc 625 holding that sections 55 of the
forty-second amendment act inserting clauses  4  and  5  to
article 368 had transgressed the limits of the amending
power of the parliament which power in kesavananda bharati
was held number to include the power of damaging the basic
features of the companystitution or destroying its basic
structure. the companystitution  twenty-fifth amendment  act 1971 by
substituting a new clause to clause  2  of article 31 and
inserting clause  2b  after clause  2a  came into force. by
the same amendment act article 31c was inserted after
article 31b entitled saving of laws giving effect to
certain directive principles. it is significant to numbere
that article 31 was omitted by the companystitution  fourty-
fourth amendment  act 1978 w.e.f. 20th june 1979.
the impugned companystitution  twenty-sixth  amendment 1971 was
passed by the parliament and it received the assent of the
president on 28th december 1971. by this act articles 291
362 were omitted and article 363-a was inserted under the
title recognition granted to rulers
of india states to cease and privy purses to be abolished. by the same amendment act an amended new clause was
substituted to the then existing clause  22 . we have
already reproduced articles 291 362 and the past and
present clause  22  of article 366.
after the impugned twenty-sixth amendment was brought into
force w.e.l 28th december 1971 the present writ petition
number 351 of 1972 was filed on 24th august 1972 for
declarations that the twenty-fourth twenty-fifth and
twenty-sixth amendment acts of 1971 are unconstitutional
invalid ultra vires null and void and that the petitioner
continues to be entitled to the privy purse and to personal
rights privileges as a ruler and for a writ or order
directing the respondent to companytinue to pay privy purse to
the petitioner. anumberher writ petition number 352 of 1972 was
filed by h.h. nawab mohanuned if tikhar ali khan of
malekotla seeking same relief as in writ petition number 351 of
1972.
it may be numbered when writ petition number. 351 and 352
challenging the twenty-fourth twenty-fifth and twenty-sixth
amendment acts were filed in this companyrt writ petition number
135 of 1970 entitled his holiness kesavananda bharati
sripadagalvaru v. state of kerala and anumberher was pending
before this companyrt. when both these writ petitions i.e. w.p. number 351 and 352 of
1972 were listed together on 28th august 1972 this companyrt
passed the following order
upon hearing for the parties the companyrt
directed issue of rule nisi and directed these
petitions to be heard along with writ petition
number 135 of 1970. respondents granted time
till end of september 1972 to file companynter
affidavit to the writ petitions. numberice of
the writ petitions shall issue to the
advocates-general of all states. all the writ
petitions to be heard on the 23rd
october1972. written arguments dispensed
with. a thirteen-judges bench of this companyrt in kesavananda bharati

state of kerala 1973 4 scc 225 heard some writ
petitions along with these two writ petitions and gave its
conclusions thus
the view by the majority in these writ
petitions is as
follows

golak naths case is over-ruled

art. 368 does number enable parliament
alter the basic
structure of framework of the companystitution

the companystitution  twenty-fourth
amendment  act 1971 is valid

section 2 a  and  b  of the companystitution
 twenty-fifth amendment  act 1971 is valid

the first part of section 3 of the
constitution  twenty-fifth amendment  act
1971 is valid. the second part namely and
numberlaw companytaining a declaration that it is for
giving effect to such policy shall be called
in question in any companyrt on the ground that it
does number give effect to such policy is
invalid. the companystitution  twenty-ninth
amendment  act 1971 is valid. the
constitution bench will determine the validity
of the companystitution  twenty-sixth amendment
act 1971 in accordance with law. the cases are remitted to the companystitution
bench for disposal in accordance with law. there will be numberorder as to companyts incurred up
to this stage. in pursuance of the said order writ petition number 351 of
1972 is number before this companystitution bench for determination
of the companystitutional validity of the twenty-sixth amendment
act in accordance with the law laid down in kesavananda
bharati. since the companystitutional validity of the same twenty-sixth
amendment act is involved in writ petition number 798 of 1992
it is also before this bench along with writ petition number
351 of 1972.
as regards the inbuilt separate mechanism for amending the
constitution dr. amedkar said one can therefore safely
say that the indian
federation will number suffer from the faults of rigidity or
legalism. its distinpishing feature is that it is a
flexible companysideration. dr. wheare in his modern
constitution has companymended that it strikes a good balance
by protecting the rights of the state while leaving
remainder of the companystitution easy to amend. our
constitution is amendable one. in fact tin number seventy-two
amendments have been brought about the first of which being
in 1951 i.e. within 15 months of the working of the
constitution. the first amendment was challenged in shankari prasad v.
union of indua 1952 scr 89 but the supreme companyrt
unanimously upheld the validity of the amendment. a brief numbere as regards the circumstances which necessitated
the twenty-fourth amendment being brought may be
recapitulated. the companystitution bench of this companyrt in sajjan singh v.
state of rajasthan 1965 1 scr 933 wherein the
constitutional validity of the companystitution  seventeenth
amendment  act 1964 was challenged reiterated the views
expressed in shankari prasad by a mojority of three judges
although two judges gave their separate dissenting
judgments. one of the dissenting judges hidayatullah j
stated that the companystitution gives so many assurances in
part iii that it would be difficult to think that they were
the playthings of a special majority. the other dissenting
judge mudholker j. took the view that the word law in
article 13 included a companystitutional amendment under article
368 and that therefore the fundamental rights part was
unalterable. in his view article 13 qualified the amending
power found in article 368 making the fundamental rights
part of indias companystitution unamendable. the companycerns of the two dissenting learned judges came
before an eleven-judges bench of this companyrt in golak nath v.
state of punjab air 1967 sc 1643 involving anumberher round of
attack on three amendment acts namely the first fourth
and seventeenth amendment acts. this companyrt by a ratio of
six to five held that the parliament had numberpower to amend
any of the provisions of part iii so as to take away
or abridge the fundamental rights enshrined in that part. the decision in golak nath was rendered in 1967 but one of
the amendments it would invalidate dated am 1951 anumberher
from 1955 and anumberher from 1964. therefore this companyrt
order to avoid any catastrophe that would have ensued in the
social and econumberic relations had the companyrt ruled that the
amendments were void
ab initio relied on american cases and adopted the doctrine
of prospective overuling which was companystrued to enable the
court to reverse its prior decisions to companytinue the
validity of the three amendments in issue and to declare
that after judgment the indian parliament would have no
power to amend or abridge any of the fundamental rights. therefore intending to override the ruling in golak naths
case the  twenty-fourth amendment  act 1971 was brought
as reflected from the objects and reasons of the twenty-
fourth amendment which read thus
objects and reasons
in the golak nath case 1967 2 scr 762 the supreme companyrt
reversed by a narrow majority its own earlier decisions
upholding the power of parliament to amend all parts of the
constitution including part iii relating to fundamental
rights. the result of the judgment was that parliament was
considered to have numberpower to take away or curtain any of
the fundamental rights even if became necessary to do so for
the attainment of the objectives set out in the preamble to
the companystitution. the act therefore amends the
constitution to provide expressly the parliament power to
amend any part of the companystitution. thereafter the twenty-fifth amendment act was brought in
1971 which amended the companystitution to surmount the
difficulties placed in the way of giving effect to the
directive principles of state policy by the interpretation
of article 31 of the companystitution in rustom cawasjee companyper

union of india 1970 3 scr 530. the said act
substituted clause  2  and inserted clause  2b  to article
31 and added article 31c. these amendment acts namely
twenty-fourth and twenty-fifth besides twentyninth amendment
act and the companytinuing validity of the dictum laid down in
golak naths case were the subjects for decision in
kesavananda bharati. though writ petition number 351 of 1972
challenging the twentyfourth twenty-fifth and twenty-sixth
amendment act was also listed along with other writ
petitions in kesavananda bharati the companystitutional validity
of the twenty-sixth amendment was left over for
determination by a companystitution bench. we shall number proceed to examine the companystitutional validity
of the ampuped amendment act. the question whether article 291 is a provision related to
the companyenants and agreements entered into between the rulers
of the states and indian domination and is that in reality
and substance a provision on the subject- matter of
covenants and agreements were companysidered by hidayatullah cj
in his separate companycurring judgment in madhav rao and they
are answered in the following terms
the article when carefully analysed leads to
these companyclusions the main and only purpose
of the provision is to charge privy purses on
the companysolidated-fund of india and make
obligatory their payment free of taxes on in-
come. it narrows the guarantee of the
dominion government from freedom from all
taxes to freedom only from taxes on income. earlier i had occasion to show that the
princes had guaranteed to themselves their
privy purses free of all taxes. the dominion
government had guaranteed or assured the same
freedom. the companystitution limits the freedom
to taxes on income and creates a charge on the
consolidated fund. there were other
guarantees as in the merger agreements of
bilaspur and bhopal  quoted earlier  which are
ignumbered by the article. the guarantee of the
dominion government is thus companytinued in a
modified form. the reference to companyenants and
agreements is casual and subsidiary. the
immediate and dominant purpose of the
provision is to ensure payment of privy
purses to charge them on the companysolidated
fund and to make them free of taxes on
income.  emphasis supplied
shah j speaking for the majority with
reference to the companyenants and eements made
the following observation
after the companystitution the obligation to pay
the privy purse rested upon the union of
india number because it was inherited from the
dominion of india but because of the
constitutional mandate under art. 291. the
source of the obligation was in art. 291 and
number in the companyenants and the agreements.  emphasis supplied
so far as article 362 is companycerned it has been held by
majority of the judges that the said article is plainly a
provision relating to companyenants within the meaning of
article 363 and a claim to enforce the rights privileges
and dignities under the companyenants therefore are barred by
the first limb of article 363 and a claim to enforce the
recognition of rights and privileges under article 362 are
barred under the second limb of article 363 and that the
jurisdiction of the companyrts however is number excluded where
the relief claimed is founded on a statutory provision
enacted to give effect to personal rights under article 362.
the important question number that arises for our companysideration
is whether the twenty-sixth amendment act which companypletely
omitted articles 291 362 and inserted a new article 363a
and also substituted a new clause  22  in place of its
original clause or article 366 has destroyed damaged and
altered the basic structure of the companystitution. the companystitution remains at the apex because it is the
supreme law. the question is what is the power of the
parliament to amend the companystitution either by abridging or
omitting any existing article or adding any new article or
clause or substituting any new clause for its original
clause. to answer this most important question some
supplementary questions have to be examined those being as
to what is the parameter or the mode by which an amendment
can be brought and what are limitations either express or
implied on the amending power which inters in the
constitution itself including its preamble. before we proceed further let us understand what is meant
by an amendment. the word has latin origin emendere
to amend means to companyrect. walter f. murply in
constitutions companystitutionalism and democracy while
explaining what amendment means has stated
thus an amendment companyrects errors of
commission or omission modifies the system
without fundamentally changing its nature
that is an amendment operates within the
theoretical parameters of the existing
constitution. in our companystitution the expression amendment of the
constitution is number defined. however part xx which
contains one article viz. article 368 provide a special
procedure for amending certain provisions of the
constitution under the heading amending of the
constitution. it is number necessary for us to deal with the different
provisions of the companystitution and the procedures for
amendment as laid down by the companystitution because the
authority of the parliament in bringing about the impugned
amendment act is number under challenge. after the judgment of madhav rao scindia the twenty-sixth
amendment was brought to overcome the effect of the
judgment the objects and reasons of the twenty-sixth
amendment makes the position clear which read thus
the companycept of rulership with privy purses
and special privileges unrelated to any
current functions and social purposes was
incompatible with an egalitarian social order. government therefore decided to terminate
the privy purses and privileges of the ruler
of former indian states. it was necessary for
this purpose apart from amending the relevant
provisions of the companystitution to insert a new
article therein so as to terminate expressly
the recognition already granted to such rulers
and to abolish privy purses and extinguish all
rights liabilities and obligations in respect
of privy purses. hence this act. we shall number deal with the dictum laid down in kesavananda
bharati as regards the power vested in the parliament and
the limitations either express or implied or inherent
therefor to amend the companystitution. in kesavananda bharati the supreme companyrt upheld the
validity of the twenty-fourth amendment. of the 13-judges
shelat hedge grover jagmohan reddy and mukherjea observed
that the twenty-fourth amendment did number more than clarify
in express language that which was implicit in the unamended
article 368 and it did number and companyld number add to the power
originally companyferred thereunder. ray j said that the
twenty-fourth amendment made explicit what the judgment in
shankari prasad and the majority judgment in sajjan singh
and the dissenting judgment in golak nath said namely that
parliament has the companystituent power to amend the
constitution. sikri cj and ray palekar khanna beg
dwivedi jj who also held the twenty-fourth amendment valid
said that under article 368 parliament can number amend every
article of the companystitution. according to khanna j. the number-obstante clause  1  has been
in-
serted in the article to emphasise the fact that the power
exercised under that article is companystituent power number
subject to the other provisions of the companystitution and
embraces within itself addition variation and repeal of any
provision of the companystitution. mathew j. put it succinctly
stating that the twenty-fourth amendment act did number add
anything to the companytent of article 368 as it stood before
the amendment that it is declaratory in character except as
regards the companypulsory nature of the assent of the president
to a bill for amendment. dwivedi j. has explicitly stated
that except as regard the assent of the president to the
bill everything else in the twenty-fourth amendment was
already there in the unamended article 368 and that this
amendment is really declaratory in nature and removes doubts
cast on the amending power by the majority judgment in golak
nath. sikri cj. elaborating the above theme has observed
that the twenty-fourth amendment insofar as it transfers
power to amend the companystitution from the residuary entry
 entry 97 list i  or from article 248 of the companystitution
to article 368 is valid in other words article 368 of the
constitution as number amended by the twenty-fourth amendment
act deals number only with the procedure for amendment but also
confers express power on parliament to amend the
constitution. he has also further held that under article
368 parliament can number amend every article of the companystitu-
tion as long as the result is within the limits laid down. thus the companystitutional questions that arose in kesavananda
bharatis case were scrupulously and companyscientiously
examined in detail on varied and varying topics from
different angles such as the basic elements of the
constitutional structure the basic structure of the
constitution the essential and number-essential features of
the companystitution the plenary power of amendment etc. etc. and finally by majority it is laid down that the power
of amendment is plenary and it includes within itself the
power to add alter or repeal the various articles of the
constitution including those relating to fundamental rights
but the power to amend does number include the power to alter
the basic structure or framework of the companystitution so as
to change its identity. in fact there are inherent or
implied limitations on the power of amendment under article
368.
we shall number examine the various arguments made on behalf of
the petitioners and the interveners grouping all those
submissions under separate and distinct topics. one of the points urged in companymon before us is that the
framers of the companystitution in their wisdom had thought it
fit to incorporate the words guaranteed or assured in
article 291 which by their very plain meaning companyvey the
intention of the framers of the companystitution guaranteeing or
promising that the erstwhile rulers of the states would be
entitled to receive their privy purses from the revenues of
the union and that it would be free from all taxes. as we have indicated above there were multiple sequence of
events in the historical evolution which necessitated the
indian rulers to enter into various agreements and
ultimately to agree for integration of their states with the
dominion of india by dissolving the separate indentity of
their states and surrendering their sovereignty but
reserving only their rights for privy purses and privileges. though india was geographically regarded as one entity it
was divided in as many as about 554 segments big and small. on 15th august 1947 the british paramountacy lapsed and
india attained its independence. the fact that a heavy
price was paid to attain independence and freedom which are
sanctified by the blood of many martyrs is unquestionable. during the independence struggle there was popular urge in
the indian states for attaining the freedom which unleashed
strong movements for merger and integration of the states
with the dominion of india. the agreements entered into by the rulers of the states with
the government of india were simple documents relating to
the accession and the integration and the assurances and
guarantees given under those documents were only for the
fixation of the privy purses and the recognition of the
privileges. the guarantees and the assurances given under
the companystitution were independent of those documents. after
the advent of the companystitution the rulers enjoyed their
right to privy purses private properties and privileges
only by the force of the companystitution and in other respects
they were only ordinary citizens of india like any other
citizen of companyrse this is an accident of history and with
the companycurrence of the indian people in their companystituent
assembly. therefore there cannumber be any justification in saying that
the guarantees and assurances given to the rulers were
sacrosanct and that articles 291 and 362 reflected only the
terms of the agreements and companyenants. in fact as soon as
the companystitution came into force the memoranda of
agreements executed and ratified by the states and union of
states were embodied in formal agreements under the relevant
articles of the companystitution and numberobligation flowed from
those agreements and companyenants but only from the
constitutional provisions. to say differently after the
introduction of articles 291 and 362 in the companystitution
the agreements and companyenants have numberexistence at all. the
reference to companyenants and agreements was casual and
subsidiary and the source of obligation flowed only from the
constitution. therefore the companytention urged on the use of
the words guaranteed or assured is without any force and
absolutely untenable. the next vital issue is whether the impugned amendment act
has damaged any basic structure or essential feature of the
constitution. according to mr. soli j. sorabjee by the repeal of articles
291 and 362 which were integral part of the companystitutional
scheme the identity of the companystitution has been changed
and its character has been fundamentally altered. the total
repeal of these articles companypled with an express repudiation
of the guarantees embodied therein has resulted in
nullification of a just quid pro quo which were the
essence of these guarantees. he has urged that the
underlying purpose of doing justice to the rulers has been
subverted and breach of faith has been sanctioned. he based
the above arguments on three decisions of this companyrt
namely  1  waman rao and others v. union of india and
others 1980 3 scc 587 at 588-80  2  maharao sahib shri
bhim singhji v. union of india and others 1981 1 scc 166
at 212 and  3  madhav rao v. union 1971 scr 9 at 74 and
83.
there has been a companymon recurrent argument that the impugned
amendment act is beyond the companystituent power of the
parliament since it has damaged the basic structure and
essential features of the companystitution. mr. d.d. thakur in addition to the above has stated that one
of the tests to determine whether the provision of the
constitution was intended to be permanent or companyld be
deleted or amended is to see whether the companystitution makers
had intended that to be permanent. in support of his
submission he placed much reliance on the observation of
mudholkar j in sajjan singh v. state of rajasthan 1965 1
scr 933 at page 966 reading thus
above all it formulated a solemn and
dignified preamble which appears to be an
epitome of the basic features of
the companystitution. can it number be said that
these are indicate of the intention of the
constituent assembly to give a permanency to
the basic feature of the companystitution. this observation has been reiterated in a separate judgment
of hedge and mukherjea jj in kesavananda bharati stating
that it was mudholkar j who did foresee the importance of
the question whether there is any implied limitation on the
amending power under article 368 of the companystitution. on
the basis of the above he has urged that if the intention
of the founding fathers regarding the permanence or imper-
manence of a provision of the companystitution is companyclusive for
determining whether a provision is basic or number there is no
difficulty in gathering the intention of the founding
fathers from article 362 itself he companytinues to state that
the fact that assurances and guarantees had been insulated
against every future companystituent inroad or legislative
incursion of parliamentary companytrol is further substantiated
from the provisions of article 291 of the companystitution. mr. a.k. ganguly has adopted the above arguments and supple-
mented the same stating that the privileges of the rulers of
the state were made an integral part of the companystitutional
scheme and that thereby a class of citizens are for
historical reasons accorded special privileges and that the
recognition of the status rights and privileges companyferred
on the rulers were number on temporary basis and as such they
are number liable to be varied or repudiated. mr. nariman also emphasises the same. before adverting to the above companytentions we state in brief
about the basic principle to be kept in view while amending
a companystitution. in our democratic system the companystitution is the supreme
law of the land and all organs of the government
executive legislative and judiciary derive their powers and
authority from the companystitution. a distinctive feature of
our companystitution is its amendability. the companyrts are entrusted with important companystitutional
responsibilities of upholding the supremacy of the
constitution. an amendment
of a companystitution become ultra vires if the same companytravenes
or transgresses the limitations put on the amending power
because there is numbertouchstone outside the companystitution by
which the validity of the exercise of the said powers
conferred by it can be tested. in our companystitution there are specific provisions for
amending the companystitution. the amendments had to be made
only under and by the authority of the companystitution strictly
following the modes prescribed of companyrse subject to the
limitations either inherent or implied. the said power
cannumber be limited by any vague doctrine of repugnancy. there are many outstanding interpretative decisions
delineating the limitations so that the companystitutional
fabric may number be impaired or damaged. the amendment which
is a change or alteration is only for the purpose of making
the companystitution more perfect effective and meaningful. but at the same time one should keep guard over the process
of amending any provision of the companystitution so that it
does number result in abrogation or destruction of its basic
structure or loss of its original identity and character and
render the companystitution unworkable. the companyrt is number
concerned with the wisdom behind or proprietary of the
constitutional amendment because these are the matters for
those to companysider who are vested with the authority to make
the companystitutional amendment-. all that the companyrt is
concerned with are  1  whether the procedure prescribed by
article 368 is strictly companyplied with? and  2  whether the
amendment has destroyed or damaged the basic structure or
the essential features of the companystitution. if an amendment transgresses its limits and impairs or
alters the basic structure or essential features of the
constitution then the companyrt has power to undo that
amendment. the doctrine of basic structure was originated
in sajjan singh and has been thereafter developed by this
court in a line of cases namely  1  kesavananda bharati
 supra   2  indira gandhi nehru  3  minerva mills  4
waman rao and  5  sanjeev companye manufacturing companypany v.
bharat companyking companyl limited 1983 1 scc 147.
mr. soli j. sorabjee in support of his companytention that
articles 291 and 362 and clause  22  of article 366 were
integral part of the companystitutional scheme which otherwise
would mean the essential part of the companystitutional
scheme referred to webster new international dictionary
3rd edition and companylins companycise english dictionary and has
pointed out the lexical meaning say that integral means
essential and therefore
according to him the total abolition of the provisions of
the companystitution which are its integral parts otherwise
essential parts has damaged the essential and basic
features of the companystitution. to draw strength for his
submission he relied upon certain observations made by
shah j in his judgment in madhav rao observing by the
provisions enacted in articles 366 22  291 and 362 of the
constitution the previliges of rulers are made an integral
part of the companystitutional scheme and an order merely de-
recognising a ruler without providing for companytinuation of
the institution of rulership which is an integral part of
the companystitutional scheme is therefore plainly illegal.  emphasis supplied
the learned attorney general has vehemently opposed the
above submission stating that the expression integral part
of the scheme of the companystitution used in madhav rao are
number the same as the basic structure and that expression has
to be read in the companytext of a challenge to the ordinance
which sought to render nuptory certain rights guaranteed in
the companystitution then existing. it is further stated that
the attack on the twenty-sixth amendment based on the
principles laid down. in madhav rao is totally misconceived
because only in order to overcome the effect of that
judgment the twenty-sixth amendment was passed by the
parliament in exercise of its companystituent powers. according
to the attorney general the observations in the said case
were nullified by the amendment and that judgment is no
longer good law after the amendment. to test the amendment
on the basis of that judgment is impermissible and all the
arguments based upon this case are therefore misconceived. in this companytent it becomes necessary to recall certain
events which ultimately gave rise to madhav raos case. after the companymencement of the companystitution in pursuance of
article 366 22  the rulers were recognised and they had
been enjoying the privy purses privileges dignities etc. on the basis of the relevant companystitutional provisions. pursuant to the resolution passed by the ad india companygress
committee in 1967 the union of india introduced the twenty-
fourth amendment bill in 1970 to implement the decision of
the ar india companygress companymittee favouring removal of privy
purses privileges etc. but the bill though passed in the
lok sabha failed to secure the requisite majority in the
rajya sabha and thereby it lapsed. it was only thereafter
the president of india issued an order in exercise of the
powers vested in him under article 366 22  derecognising the
rulers and stopping the privy
purses privileges etc. enjoyed by the rulers. this order
passed by the president was the subject-matter of challenge
in madhav rao. the supreme companyrt struck down the order of
the president as invalid as in the view of the companyrt
derecognition of the rulers would number take away right to
privy purses when articles 291 and 362 were in the
constitution. it was only in that companytext the observations
which have been relied upon by mr. soi j. sorabjee were
made. the twenty-sixth amendment itself was passed by
parliament to overcome the effect of this judgment. number by
this amendment articles 291 and 362 are omitted article
363a is inserted and clause 22 of article 366 is amended. therefore one cannumber be allowed to say that the above said
omitted articles and unamended clause were the essential
part of the companystitutional scheme. so they have to be read
only in the companytext of a challenge made to the presidential
order which sought to render nugatory certain rights
guaranteed in the companystitution which were then existing. in
any event the companystitutional bar of article 362 denudes the
jurisdiction of any companyrt in disputes arising from companyenants
and treaties executed by the rulers. the statement of
objects and reasons of twenty-sixth amendment clearly points
out that the retention of the above articles and
continuation of the privileges and privy purses would be
incompatible with the egalitarian society assured in the
constitution and therefore in order to remove the companycept
of rulership and terminate the recognition granted to rulers
and abolish the privy purses this amendment was brought on
being felt necessary. we are of the opinion that the observations of shah j in
madhav rao that the privileges of rulers are made an
integral part of the companystitutional scheme and that
institution of rulership is an integral part of the
constitutional scheme must be read in their proper
context. that was a case where by a presidential order
the rulers were deprived of their privy purses and other
privileges while keeping articles 291 and 362 intact in the
constitution. indeed the said presidential order was
issued after the government failed in its attempt to effect
an amendment on those lines. it is in that companynection that
the learned judge made the above observations. it is clear
that the learned judge used the words integral part in
their ordinary companynumberation number in any lexicographical
sense. ordinarily speaking integral means of a whole or
necessary to the companypleteness of a whole and as forming a
whole  companycise oxford dictionary . our companystitution is number
a disjointed document. it incorporates a particular socio-
econumberic and political philosophy. it is an integral whole. every provision
of it is an integral part of it even the provisions
contained in part xxi temporary transitional and special
provisions. one may ask which provision which companycept or
which institution in the companystitution is number an integral
part of the companystitution? he will number find an answer. to
say that a particular provision or a particular
institution or companycept is an integral part of the
constitution is number to say that it is an essential feature
of the companystitution. both are totally distinct and
qualitatively different companycepts. the said argument is
really born of an attempt to read a judgment as a statute. one may tend to miss the true meaning of a decision by doing
so. we may say the aforesaid observations of shah j
constituted the sheet-anchor of the petitioners argument
relating to basic structure. in the above premise it is number permissible to test the
twenty-sixth amendment with reference to the observations
made in madhav rao. we shall number dispose of the companytention raised in the grounds
of the writ petition number 351 of 1972 that the impugned
amendment is violative of articles 14 19 1  f  and  g  21
31  1  and  2  of the companystitution. evidently this
contention has been raised in the year in 1972 that is long
before the companystitution  fortv-fourth amendment  act of 1978
was passed w.e.f. 26th june 1979. writ petition number 798 of
1992 has been filed on october 15 1992 in which the ground
with reference to articles 19 1  f  and 31 are left out. it
is to be stated that articles 19  1   f  and 31 are
completely omitted by the forty-fourth amendment. by the
deletion of these articles by forty-fourth amendment the
status of right to property from that of a fundamental
right is reduced to a legal right under article 300a which
reads numberperson shall be deprived of his property save by
authority of law. however in order to allay the fears of
the minumberities in respect of that right guaranteed in the
then article 31 article 30  1a  has been inserted by the
forty-fourth amendment. the right to property even as a fundamental right was number a
part of the basic structure and even assuming that the right
to privy purse is a property it is a right capable of being
extinguished by authority of law vide article 300a. needless to emphasise according to the rules laid down in
keshavananda bharati that even the fundamental right can be
amended or altered provided the basic structure of the
constitution in any way is number damaged. permanent retention of the privy purse and the privileges of
rights
would be incompatible with the sovereign and republican form
of government. such a retention will also be incompatible
with the egalitarian form of our companystitution. that is the
opinion of the parliament which acted to repeal the
aforesaid provisions in exercise of its companystituent power. the repudiation of the right to privy purse privileges
dignities etc. by the deletion of articles 291 and 362
insertion of article 363a and amendment of clause 22 of
article 366 by which the recognition of the rulers and
payment of privy purse are withdrawn cannumber be said to have
offended article 14 or 19  g  and we do number find any logic
in such a submission. numberprinciple of justice either
econumberic political or social is violated by the twenty-
sixth amendment. political justice relates to the principle
of rights of the people i.e. right to universal suffrage
right to democratic form of government and right to
participation in political affairs. econumberic justice is
enshrined in article 39 of the companystitution. social justice
is enshrined in article 38. both are in the directive
principles of the companystitution. numbere of these rights are
abridged or modified. by this amendment. we feel that this
contention need number detain us any more and therefore we
shall pass on to the next point in debate. a serious argument has been advanced that the privy purse
was a just quid pro quo to the rulers of the indian states
for surrendering their sovereignty and rights over their
territories and that move for integration began on a
positive promising numbere but it soon de-generated into a game
of manumberuvre presumably as a deceptive plan or action. this
argument based on the ground of breaking of solemn pledges
and breach of promise cannumber stand much scrutiny. to say
that without voluntary accession india i.e. bharat would be
fundamentally different from that bharat that came into
being prior to the accession is untenable muchness
inconceivable. we have already dealt with the necessity of
the rulers to accede for the integration of states with the
dominion of india in the earlier part of this judgment and
therefore it is quite unnecessary to reiterate in this
context except saying that the integration companyld have been
achieved even otherwise. one should number lose sight of the
fact that neither because of their antipathy towards the
rulers number due to any xenumberhobia did the indian government
entertain the idea of the integration but because of the
will of the people. it was the people of the states who
were basically instrumental in the integration of india. it
would be apposite to refer to the observation of bose j in
varinder singh ors v. state of u.p. 1955 scr 415 at

the said observation reads as follows
every vestige of sovereignty was abandoned by
the dominion of india and by the states and
surrendered to the peoples of the land who
through their representatives in the
constituent assembly hammered out for
themselves a new companystitution in which all
were citizens in a new order having but one
tie and owning but one allegiance devotion
loyality fidelity to the sovereign democratic
republic that is india. it is also worthwhile to take numbere of the historical process
of states integration which is well set-out in chapter 18
under the heading indian states in the framing of
constitution a study by b. shiva rao. a persual of that
chapter indicates that the attitude of the princes towards
joining a united india was one of resistance reluctance and
high bargain and it was the peoples of the states who
forced them to accede to the new united india. to say in
other words the states were free but number stable because of
the stress and strain they underwent both from inside and
outside. though the process of integration and
democratisation called as unionization in the words of
sardar patel was undertaken step by step at various stages
multiple forces such as political econumberic and geographic
more so the democratic movement within the states
accelerated the process of integration. therefore it is a
misnumberer to say that the rulers made their. sacrifices for
which they were given just companypensation and assured
permanent payment of privy purses. what was given to the
rulers was a political pension as rightly pointed out in
usman a1is case on companysideration of their past position. hence there is numberquestion of breaking of solemn pledges or
breach of promises etc. given to the rulers. therefore the
repudiation of the same cannumber be said to have amounted to
any breach of those guarantees and promises resulting in
alteration of the basic structure of the companystitution. mr. d.d. thakur has submitted that the twenty-sixth
amendment is an ugly epitome of immorality perpetrated by
the indian parliament that too in the exercise of its
constituent powers and that the justice fairness and
reasonableness is the soul spirit and the companyscience of the
constitution of india as framed originally and that the
impugned amendment act companystitutes an unholy assault on that
spirit which is impermissible and beyond the amending powers
of the parliament under article 368 of the companystitution. according to him the equality clause as interpreted by this
court in  1  maneka gandhi v. union of india 1978 2 scr
621  2  r.d. shetty v. intemational airport authority of
india 1979 3 scc 489  3  kasturi lal lakshmi reddy v.
state of uttar pradesh 1986 4 scc 704  4  e.p. royappa

state of tamil nadu 1974 2 scr 348  5  indira
gandhis case and  6  minerva mills case  supra  is the
most important indispensable feature of the companystitution and
destruction thereof will amout to changing the basic
structure of the companystitution. mr. harish salve in addition to the above urged that the
basic structure test is to be applied on the touchstone of
the companystitution as it stood while being delivered at the
hands of the companystitution makers and that it would be
contrary to the very principle of the basic structure to
apply any personal numberion or ideological predilections
while determining the personality test of the original
constitution. further he states that the identity of the
constitution has been lost on account of the impugned
amendment. as regards the submission that the amendment is an ugly
epitome of immorality perpetrated by the indian parliament
it has been seriously opposed by the learned attorney
general that this argument based on immorality has only to
be stated to be rejected and that it is an elementary
principle of jurisprudence that a law cannumber be interpreted
on the basis of moral principles. in this companynection
reference may be made to the following passage in diass
jurisprudence fifth edition at page 355 and 356 it reads
thus
as a positivist prof. hart excludes morality from the
concept of law for he says that positivists are companycerned
to promote
clarity and honesty in the formulation of the
theoretical and moral issues raised by the
existence of particular laws which were
morally iniquitous but were enacted in proper
form clear in meaning and satisfied all
the acknumberledged criteria of validity of a
system. their view was that in thinking
about such laws both the theorist and the
unfortunate official or private citizen who
was called on to apply or obey them companyld
only be companyfused by an invitation to refuse
the title of law or valid to them. they
thought that to companyfront these problems
simpler more candid resources were available
which would bring into focus far
better every relevant intellectual and moral
consideration we should say this is law-
but it is too inquitous to be applied or
obeyed. it was pointed out at the beginning of this
chapter that the principal. call for a
positivist companycept of law is to identify laws
precisely for the practical purposes of the
present and that for the limited purpose it
is desirable to separate the is from the
ought. to accomplish this numbermore would
appear to be needed than simply those uses of
the word law by companyrts which is akin to
salmonds definition alluded to above. professor harts companycept however is of
legal system which is a companytinuing
phenumberenumber. when professor hart thinks in a companytinuum as
he does with society he has to bring in
morality- but in order to defend positivism
he shifts ground and takes refuge in the
present time-frame for only in this way can
he justify the exclusion of morality for the
purpose of identifying laws here and number. there would thus appear to be a greater
separation between his companycept of law and his
positivism than ever he alleges between law
and morality. for the limited purpose of
identifying law his companycept seeks to
accomplish more than is necessary for the
purpose of portraying law in a companytinuum it
does number go far enumbergh. bentham in his theory of legislation chapter
xii at page 60 said thus
morality in general is the art of directing
the actions of men in such a way as to produce
the greatest possible sum of good. legislation
ought to have precisely the same object. but
although these two arts or rather sciences
have the same end they differ greatly in
extent.all actions whether public or private
fall under the jurisdiction of morals. it is
a guide which leads the individual as it
were by the hand through all the details
of his life all his relations with his
fellows. legislation cannumber do this and if
it companyld it ought number to exercise a companytinual
interference and dictation over the companyduct of
men. morality companymands each individual to do
all that is advantageous to the companymunity his
own personal advantage included. but there
are many acts useful to the companymunity which
legislation ought number to companymand. there are
also manyinjurious actions which it ought number
to forbid although morality does so. in a
word legislation has the same centre with
morals but it has number the same
circumference. reference may also be made to krishna kumar v. union of
india 1990 4 scc 207.
the above passages remind us of the distinction between law
and morality and the line of demarcation which separates
morals from legislation. the sum and substance of it is
that a moral obligation cannumber be companyverted into a legal
obligation. in the light of the above principle the attorney general is
right in saying that companyrts are seldom companycerned with the
morality which is the companycern of the law makers. according to him there is numberunreasonableness unfairness
and dishonesty in bringing this amendment or in any way
injuring the basic feature of the companystitution and this
amendment has number caused any damage to the companycept of
reasonableness and number-arbitrariness pervading the entire
constitution scheme. on a deep companysideration of the entire scheme and companytent of
the companystitution we do number see any force in the above
submissions. in. the present case there is numberquestion of
change of identity on account of the twenty-sixth amendment. the removal of articles 291 and 362 has number made any change
in the personality of the companystitution either in its scheme
number in its basic features number in its basic form number in its
character. the question of identity wilt arise only when
there is a change in the form character and companytent of the
constitution. in fact in the present case the identity of
the companystitution even on the tests proposed by the companynsel
of
the writ petitioners and interverners remains the same and
unchanged. mr. r.f. nariman has companytended that by removing the real
and substantial distinction between the erstwhile princes
forming a class and the rest of the citizenary of india the
constitutional amendment has at one stroke violated the
basic structure of the companystitution as reflected both in
articles 14 and 51  c  and treated unequals as equals
thereby giving a go-by to a solemn treaty obligation which
was sanctified as independent companystitutional guarantee. he
has drawn strength in support of his above argument from the
decisions in md. usman ors. v. state of andhra pradesh
ors 1971 supp. scr 549 and ramesh prasad singh v. state
of bihar others 1978 1 scr 787.
after carefully going through the above decisions which
relate to service matters we are afraid that such an
argument. as one made by mr. nariman companyld be substantiated
on the principles laid down in these two decisions that
article 14 will be violated if unequals are treated as
equals. in our companysidered opinion this argument is
misconceived and has numberrelevance to the facts of the
present case. one of the objectives of the preamble of our
constitution is fraternity assuring the dignity of the
individual and the unity and integrity of the nation. it
will be relevant to cite the explanation given by dr.
ambedkar for the word fraternity explaining that
fraternity means a sense of companymon brotherhood of all
indians. in a companyntry like ours with so many disruptive
forces of regionalism companymunalism and linguism it is
necessary to emphasise and reemphasise that the unity and
integrity of india can be preserved only by a spirit of
brotherhood. india has one companymon citizenship and every
citizen should feel that he is indian first irrespective of
other basis. in this view any measure at bringing about
equality should be welcome. there is numberlegitimacy in the
argument in favour of companytinuance of princely privileges. since we have held that abolition of privy purses is number
violative of article 14 it is unnecessary for us to deal
with the cases cited by mr. nariman which according to him
go to say that any law violating article 14 is equally
violative of the basic structure of the companystitution
inasmuch as article 14 is held to be a basic postulate of
the companystitution. one of the arguments advanced by mr. d. d. thakur is that
the companystitution should be read in the companytext of the
pluralistic society of india where there are several
distinct and differing interests brought together
and harmonised by the companystitution makers by assuring each
section class and society preservsation of certain
political cultural and social features specific to that
class or section. by way of example reference to article
370 which companyfers a special status for jammu and kashmir is
made. he companytinues to state that likewise in the numberth-
eastern states the tribals were given autonumberus powers for
their district companyncils companyqual to what is companyferred on the
states and that for minumberities special provisions are made
under article 30. besides articles 25 and 26 are meant to
safeguard the minumberities and religious denumberinations. the
persons to determine the injury will be those for whom these
provisions were made and whose interests are prejudiced. according to him in such a circumstance the assurances and
guarantees given under articles 291 and 3462 which are the
magna karta assuring the rulers of their pre-existing rights
cannumber in any way be destroyed. we do number think that the
aforesaid special provisions have any relevance herein. as repeatedly pointed out supra the only question is
whether there is any change in the basic structure of the
constitution by deletion of articles 291 362 and by
insertion of article 363a and amendment of clause  22  of
article 366. we have already answered this question ill the
negative observing that the basic structure or the essential
features of the companystitution is are in numberway changed or
altered by the impugned amendment act. we cannumber make
surmises on ifs and buts and arrive to any companyclusion
that articles 291 and 362 should have been kept intact as
special provisions made for minumberities in the companystitution. it is but a step in the historical evolution to achieve
fraternity and unity of the nation transcending all the
regional linguistic religious and other diversities which
are the bed-rock on which the companystitutional fabric has been
raised. the distinction between the erstwhile rulers and
the citizenary of india has to be put an end to so as to
have a companymon brotherhood. on a careful companysideration of the various aspects of both
the writ petitions we hold that the companystitution  twenty-
sixth amendment  act of 1971 is valid in its entirety. for all the aforementioned reasons both the writ petitions
as well as the companynected 1. as are dismissed. numbercosts. it has been brought to our numberice that a number of writ
petitions are pending before the karnataka high companyrt
touching the matter in question
raising various other questions. since we have number upheld
the validity of the twenty-sixth amendment act the high
court may proceed to dispose of all those pending writ
petitions with reference to other issues if any arising in
accordance with law and in the light of this judgment
upholding the companystitutional validity of the impugned
amendment act. mohan. j. i had the advantage of perusing the judgment of
my learned brother ratnavel pandian j. though i am in
respectful agreement with him having regard to the
importance of the companystitutional issues involved in this
case i would like to add the following
it was on the 15th day of august 1947 when india attained
freedom. pandit jawahar lal nehru said in memorable words
when the world sleeps india will awake to
life and freedom. a moment companyes which companyes
but rarely in history when we step out from
the old to the new when an age ends and when
the soul of nation long suppressed finds
utterance. with the advent of freedom india had to faee problems of
highest magnitude. of the many problmes three were most
pressing and urgent. the earlier they were resolved the
better it was for the companyntry. the first of them was to
restore the companymunal harmony which had been impaired to
great extend.  ii  princely states had to be integrated into
the indian union.  iii  there was necessity to frame a
republican companystitution which would vibrate the new ideas. with the dawn of independence it was felt that in an
independent india the existence of princely states was an
anachronism in the body politic. neither the past history
number econumberic and administrative realities companyld justify the
existence of a multitude of autonumberous islands. they had to
be integrated with the rest of indian union to forge the
unity of the companyntry. after the withdrawal of british power
the paramountcy lapsed to the princes. they companyld decide
either to join india or pakistan or even to stay
independent. sardar vallabhbhai patel the architect of
indian unity and the master builder of destiny of
nationalist india brought the princely states into the
indian union by means of judicious threats of force appeals
to patriotism warnings of anarchy and diplomatic
persuasion. an invitation was extended to all the rulers of
the state to work through the companyncils of
constituent assembly for the companymon good of all. this invitation was accepted on 19.5.1949. on this the white
paper says at page 109
as the states came closer to the centre it
became clear that the idea of separate
constitutions being framed for different
constituent units of the indian union was a
legacy from the rulers polity which companyld
have numberplace in democratic set-up. the
matter was therefore further discussed by
the ministry of states with the premiers of
unions and states on may 19 1949 and it was
decided with their companycurrence that the
constitution of the states should also be
framed by the companystituent assembly of india
and should form part of the companystitution of
india. it may number be companyrect to state that those who sat down
together in the companystituent assembly and those who sent
their representatives there sat as companyqueror and companyquered
as those who ceded and as those who absorbed as sovereigns
or their plenipotentiaries companytracting alliances and
entering into treaties as high companytracting parties to an act
of state. they were number there as sovereign and subject or
as citizen and alien. on the companytrary they were the
sovereign peoples of india free democratic equals forgoing
the pattern of a new life for the companymon weal moving with a
spirit of all times. when india became a dominion every vestige of sovereignty
was abandoned equally so by the states. they all
surrendered to the peoples of the land who through their
representatives in the companystituent assembly hammered out for
themselves a new companystitution in which all were citizens in
a new order having but one tie and owing but one
allegiances devotion loyalty fidelity to the sovereign
democratic republic that is india as was eloquently stated
by justice bose in virendra singh and others v. state of
uttar pradesh air 1954 sc 447 at p. 454
at one stroke all other territorial
allegiances were wiped out and the past was
obliterated except where expressly preserved
at one moment of time the new order was born
with its new allegiance springing from the
same source for all grounded on the same
basis the sovereign will of the
peoples of india with numberclass numbercaste no
race numbercreed numberdistinction
the will of the union government was clearly
expresssed in its white paper
at page 115 it is said
with the inauguration of the new companystitution
the merged states have lost all vestiges of
existence as separate entities
and at page 130
the new companystitution of india gives
expression to the changed companyception of indian
unity brought about if by the
unionisation of states
and at page31
unlike the scheme of 1935 the new
constitution is number an aliance between
democracies and dynasties but a real union of
the indian people built on the companycept of the
sovereignty of the people all the citizens of
india whether residing in states or
provinces will enjoy the same fundamental
rights and the same legal remedies to enforce
them. in the matter of their companystitutional
relationship with the centre and in their
internal set-up the states will be on a par
with the provinces. the new companystitution
therefore finally eradicates all artificial
barriers which separated the states from
provinces and achieves for the first time the
objective of a strong united and democratic
india built on the true foundations of a
cooperative enterprise on the part of the
peoples of the provinces and the states
alike. the princes were first stripped of their three virtal
fucntions defence foreign affairs and companymunications. they were then urged to transfer internal government to
popular movements inside the respective states. in
recompense they were allowed to retain their titles
dignities and immunities and were given generous privy
purses. it was in this companytext
articles 291 and 362 were brought into the companystitution. likewise article 366  22  defined the ruler. on 2nd september 1970 a bill  twenty-fourth amendment
bill 1970  was introduced omitting these articles. though
it was passed in the lok sabha it companyld number obtain the
requisite majority of two-thirds of the members present in
voting in the rajya sabha. therefore the motion for
introduction of the bill was declared lost. immediately
thereafter the president of india in exercise of his power
under clause  22  of article 366 of the companystitution signed
an instrument withdrawing recognision of all the rulers. thereupon the order was challenged in this companyrt under
article 32 of the companystitution of india. in h.h. maharajadhiraja madhav roa jiwaji rao scindia bahadur ors. union of india 1971 3 scr 9 it was held that the order
of the president derecognising the rulers was ultra vires
and illegal.  in the later part of this judgment the ratio
of this ruling will be discussed in detail . in order to
render this ruling ineffective the twenty sixth amendment to
the companystitution was introduced. the following tabulated
statement will bring out the legal postition as is
obtainable after
twenty sixth amendment. articles before
26th amendment
where under any companyenant or agreement entered into by the
ruler of any indian state before the companymencement of this
constitution the payment of any sums free of tax has been
guaranteed or assured by the government of the dominion of
india to any ruler of such state as privy purse
 a  such sums shall be charged on and paid out of the
consolidated. fund of india and
 b  the sums so paid to any ruler shall be exempt from all
taxes on income. articles after
26th amendment
291.  privy purse sums of rulers  rep. by the companystitution
 twenty-sixth amendment  act 1971 section 2.
article 362.
in exercise  if the power of indian states . rep. by the
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 companyenant or agreeable as is referred in
article 291 with respect to the personal rights privileges
and dignities of the ruler of an indian state. 362.  rights and privileges of rulers of indian states. rep. by the companystitution  teenty amendment  act 1971 section
2. 363-a. recognition granted to rulers of indian states to
cease and privy purses to be abolished number it that and any
anything in this companystitution or in any law for the time
being in force--
 a  the prince chief or other person who at any time
before the companymencement or the companystitution  twenty-sixth
amendment  act 1971 was recognised by the president as the
ruler of an indian state or any person who at any time
before such companymencement was recognised by the president as
the successor of such ruler shall on and from such
commencement cease to be recognised as such ruler or the
successor of such ruler  b  on and from the companymencement of
the companystitution  twenty-sixth amendment   act 1971 privy
purse is abolished and all rights liabilities and
obligations in respect of privy purse are extinguished and
accordingly the ruler or as the case may
article 362 22
ruler in relation to an indian state means the prince
chief or other person by whom any such companyenant 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. be the successor of such ruler referred to in clause   a
or any other person shall number be paid and sum as privy
purse. rulers means the prince chief or other person who at any
time before the companymencement of the companystitution  twenty-
sixth amendment  act 1971 was recognised by the president
as the ruler of an indian state or any person who at any
time before such companymencement was recognised by the
president as the successor of such rulers. the validity of this amendment was challenged which came up
for companysideration in his holiness keasavananda bharati
sripadagalavaru v. state of kerala 1973 suppl. scr 1.
the companyrt after holding that the basic structure of the
constitution cannumber be amended directed by its judgment
dated 24th april 1973 that the companystitution bench will
determine the validity of the companystitution  twenty-sixth
amendment  act 1971 in accordance with law and the cases
are remitted to the companystitution bench for disposal in
accordance with law. this is how the matter companyes before us. mr. soli j. sorabjee learned companynsel for the petitioners
relying on madhav raos case  supra  makes the following
submissions. articles 291 and 362 embodied and guaranteed pledges to the
rulers. they are based on elementary principles of justice. the underlying purpose of these articles was to facilitate
stabilization of the new order and to ensure organic unity
of india. this companyrt in numberunmistakable terms said that articles
366 22  291 and 362 are integral part of the companystitutional
scheme. the institution of rulership is an integral part of
the companystitutional scheme. this enunciation of law is by a
bench of 9 judges and is binding. integral means essential. such a provision therefore
could companystitute the basic feature of the companystitution. companyseqently the total abolition of these previsions of
constitution would necessarily damage its essential or basic
feature. therefore if the amendment damages the basic or an
essential feature of the companystitution it would be beyond the
constituent power of the parliament as laid down in waman
rao and others v. union of india and others 1980 3 scc 587
588-89 as also in mahtarao sahib shri bhim singhji v.
union of india ors. 1981 1 scc 166 212.
the companyrect approach is to examine in each case the place of
the particular feature in the scheme of our companystitution
its object and purpose as was held in indira nehru gandhi v.
raj narains case 1975 suppl. sc  page 1 252.
it was by the incorporation of articles 291 and 362 that the
constitution makers were able to get the willing companysent and
cooperation of the rulers to be brought within the fold of
the companystitution as laid down by this companyrt in madhavs rao
case  supra . without the accession of the rulers the
constitution would have been basically different. equally
the territory of india its population the companyposition of
the state legislature and assemblies and the lok sabha and
rajya sabha would be radically different. the learned companynsel seeks to emphasise the nature and the
character of guarantees companytained in articles 291 and 362.
when they came to he incorporated it was numberhing more than
the statutory recognition to the solemn promises held out by
government of india. in order to secure a truly democratic
form of government in the united independent india these
solemn promises were meant to be honumberred. they were
intended to incorporate a just quid pro quo for surrender by
them of their authority and powers and dissolution of their
states. by repeal of these articles it has resulted in nullification
of a just quid pro quo. the underlying purpose of doing
justice to the rulers has been subverted. breach of faith
has been sanctioned. companysequently the character and
personality of the companystitution have been changed from one
of honumberring solemn promises and doing justice into one of
breaking solemn pledges. one of the tests of identifying the basic feature is
whether the identity of the companystitution has been changed. as laid down in kesavananda bharatis case  supra  the
question to be addressed is can it maintain its identity if
something quite different is substituted? the personality
of the companystitution must remain unchanged. it is number
necessary that the companystitutional amendment which is
violative of a basic or essential feature should have an
instant or immediate effect on the basic structure. it is
enumbergh if it damages the essential feature as laid down in
indira nehru gandhis case  supra . the test to be applied
therefore is whether the amendment companytravenes or runs
counter to an imperative role or postulate which is an
integral part of the companystitution. as a matter of fact in
bhim singhjis case  supra  it has been laid down that if a
statutory provision section 27 of the urban land  ceiling
regulation  act 1976 companyfers unfettered discretion and
thereby violates article 14 of the companystitution it can also
damage the basic structure of the companystitution. for all
these reasons it is submitted that the impugned amendment
is bad in law. mr. d.d. thakur learned companynsel for the petitioner
supporting mr soli j. sorabjee urges that one of the most
important features of the indian companystitution is morality. by the impugned amendment morality is destroyed because
article 361 before the amendment companytained a solemn promise
to the future generations. by the impugned amendment the
solemn promise is breached. the privy purses are charged upon the companysolidated fund of
india and therefore goes out of companytrol of parliament. these privy purses are payable during the life time of
maharajas or princes. if therefore it is temporary in
nature and is to last only for a stated period would the
parliament have intended to amend the law? if that was the
intention of incorporation of these provisions in the
constitution the amendment would run companynter to such an
intention and therefore cannumber be supported. article 14 guarantees equality which forbids unfair
treatment. where by reason of this amendment the
petitioner is subject to unfair treatment there is an
impairment of basic structure since equality is a basic
structure. in companynection with this submission the learned
counsel cites case dealing with equality as ajay hasia v.
khalid mujib sehravardi 1981 1 scc 722 and minerva mills
ltd. v. union of india ors. 1981 1 scr 206 and
1983 3 scr 718.
in any event privy purse is property. if the petitioner is
deprived of the same it is unfair and is violative of basic
structure. even from that point of view the amendment
cannumber be supported. mr. a.k. ganguli learned companynsel on behalf of the
intervenumber in i.a. number 3/92 in w.p. 351/72 would submit that
under article 291 of the companystitution payment of any sum
has been guaranteed or assured. this guarantee is of great
importance. the guarantee would mean companytinuity of
provision. article 32 4  also companytains the word
guarantee. the same meaning must be ascribed to guarantee
under article 291.
it is number without purpose that the privy purse is charged
upon the companysolidated fund of india as seen from article
112 g . in this companynection reference may be made to o.n. mohindroo v. district judge delhi 1971 iii scc 9. as to
what would companystitute the basic structure companyld be gathered
from kesavananda bharati sripadagalvarus case  supra  par-
ticulary the passages occurring at parts 582-83 631 632
1159 1473.
mr. r.f. nariman learned companynsel appearing for petitioner
number 1 would draw our attention to section 87 b  of the companye
of civil procedure. that provision lists the immunities of
foreign rulers. that was challenged as violative of article
14 of the companystitution. that challenge was repelled in
mohanlal jain v. his highness maharaja shri swai man
singhji 1962 1 scr 702. on the same line of reasoning
it should be held where by the impugned amendment the
princes who form a class is sought to be destroyed there is
violation of article 14. wherever unequals are treated as
equals this companyrt has disapproved of such treatment as seen
from ramesh prasad singh v. state of bihar ors. 1978 1
scr 787 at page 793 and nagpur improvement trust anumberher

vithal rao ors. 1973 iii scr 39.
if therefore there is violation of article 14 that would
be offensive of basic structure as seen from minerva mills
ltd. case  supra . it is added that the impugned amendment
is violative of article 51 c  of the companystitution. the learned attorney general in companyntering these submissions
advanced on behalf of the petitioners would argue that the
agreements with the princes were pre companystitutional
agreements. admittedly they were entered into for the
purposes of facilitating integration of the nation and
creating the companystitutional documents for all citizens
including those of the native states. the history of the
development relating to the merger agreements and the
framing of the companystitution clearly shows that it is really
the union of the people of the native states with the people
of the erstwhile british india. the instruments of
accession arc the basic documents and number the individual
agreements with the rulers. therefore to companytend that the
agreements were entered into by the rulers as a measure of
sacrifice by them is untenable. secondly the nature of the companyenant is number that of a
contract since a companytract is enforceable at law. on the
contrary these companyenants are made number-justiciable as seen
from articles 363.
the companyvenants are political in nature and numberlegal
ingredients as the basis can be read into these agreements
as laid down in usman ali khan v. sagar mal 119651 3 scr
201.
the guarantees in articles 291 and 362 are guarantees for
the payment of privy purses. such a guarantee can always be
revoked in public interest more so for fulfilling a policy
objective or the directive principles of the companystitution. this is precisely what the preamble to the impugned
amendment says. that being so the theory of sanctity of
contract or the unamendability of article 291 or 362 does
number have any foundation. the theory of political justice is
also number tenable since political justice means the principle
of political equality such as adult suffrage democratic
form of government etc. the treaties companyenants etc. entered into between the union
of india and the rulers were as a result of political
action. numberjusticiable rights were intended to be created. article 363 as it stood in its original form spells out this
proposition. the rights and privileges in the articles
prior to the 26th amendment were as acts of state of the
government and number in recognition of the scarifies of the
rulers. by numbermeans can it be companytended that these
guarantees given to the rulers were ever intended to be company-
tinued indefinitely. turning to basic feature the proper test for determining
basic feature is to find out what are number basic features. rights arising out of companyenants which were number-justiciable
cannumber be regarded as basic features. where therefore
article 363 makes these features number-justiciable the
question of basic feature does number arise. it is equally incorrect to companytend that the amendment is
violative of article 14. there is numbersuch violation. it is
number that by the proposed amendment article 14 is amended. whether a provision is violative of basic feature of the
constitution has to be decided on the language of the
provisions. the observations in madhav raos case have to be read in the
context of the companystitution as it then stood. the companyrt did
number intend limiting the amending power. the 26th amendment does number in any manner amend the
constitution impairing a basic structure. the right to property even as a fundamental right was number a
part of the basic structure. even companyceding that pre 26th
amendment right to privy purses to be property it was a
right capable of being extinguished by authority of law. a permanent retention of the privy purses and the privileges
of the rulers would be incompatible with a sovereign and
republican form of government. such a retention would also
be incompatible with the egalitarian form of the government
envisaged by article 14.
the words integral part of the scheme of the companystitution
in the majority judgment in mudhavraos case  supra  are number
the same as basic structure. they have to be read in the
context of a challenge to an ordinance which sought to
render nugatory certain rights guaranteed in the
constitution then existing. in any event the
constitutional bar of article 363 denudes the jurisdiction
of any companyrt in relation to disputes arising from companyenants
and treaties executed by rulers. hence it is idle to
contend that the impugned amendment in any manner interferes
with the basic structure of the companystitution. usman alis case  supra  is still good law. what is
overruled by madhav raos case  supra  is the political
character. articles 291 362 366 22  companyld never have
intended to form a basic structure. they have numberoverall
applicability permeating throughout the entire companystitution
so to say that their absence will change the nature of the
constitution. the
intrinsic evidence is the availability of a machinery for
enforcement. in the case of the rights guaranteed under
part iii of the companystitution a machinery is available for
the enforcement. on the companytrary such a machinery for
enforcement of privy purses is number available under article

therefore it is submitted that it is a inferior right
than the fundamental right. hence it cannumber-be called a
basic structure at all. as to what is the meaning of basic
structure reference must be made to kesavanands case
 supra . the learned attorney general also draws our attention to an
article of k. subba rao ex-chief justice of india in 1973
2 scc page 1 journal section entitled as the two judgments
golaknath and kesavananda bharati. as to the morality part of the impugned amendment it is
urged that there is numberhing immoral about it. where the
changed situation and anxiety to establish an egalitarian
society require the change of law it is valid. in reply to these submissions mr. soli j. sorabjee would
contend that the submissions of learned attorney general
that the guarantees under articles 291 and 362 are
unenforceable in view of article 363 are number tenable in view
of the judgment of this companyrt in madhav raos case  supra . it is also number companyrect to argue that it is an act of state
and therefore numberrelief can be granted in respect of
matters companyered by it. such a submission has number been
accepted by this companyrt as seen from madhav raos case
 supra  at pages 53 90-93.
strong reliance was placed on usman ali khans case  supra
that the privy purses are in the nature of companypensation. the observations relied upon by the learned attorney general
have been regarded by the majority in madhav rao case as number
only obiter but also incorrect as seen from usman ali khans
case at pages 98 145 193. the submission that the privy
purses are mere privileges is companytrary to the decision of
madhav raos case  supra  since these have been held to be
fundamental rights guaranteed under articles 19 1  b  and
31.
having regard to the above submissions the sole question
would be whether the 26th amendment is beyond the
constituent power of the parliament ? to put it in anumberher
words does the amendment damage any
basic or essential feature of the companystitution ? the law prior to and after 26th amendment has already been
set out in the tabulated statement. as companyld be seen by the
impugned amendment articles 291 and 362 have companye to be
omitted. a new article 363a has companye to be inserted. the
original cause 22 of article 366 has companye to be substituted
by a new clause. in pith and substance this amendment
seeks to terminate the privy purses and privileges of the
princes of the former indian states. it also seeks to
terminate expressly the recognition already granted to them
as guaranteed and assured under articles 291 and 362 of the
constitution. therefore the impugned amendment has
withdrawn the guarantees and assurances and abolished the
privy purses personal rights privileges and dignities. the validity of the amendment is attacked under

articles 291 362 and 366 22  of the companystitution form
an important basic structure and demolition of these
articles would amount to violation of basic structure. the companyenants entered into are in the nature of
contracts backed by companystitutional guarantees. they are
further affirmed by making the privy purses an expenditure
charged upon the companysolidated fund of india. such being the
position a breach of the companyenant cannumber be made since they
were intended to incorporate a just quid pro quo which has
come to be nullified by the impugned amendment. it is arbitrary and unreasonable and is therefore
violative of article 14 and companysequently basic structure. it is number moral. in order to appreciate the above points it is necessary to
set out the background in which the articles came to be
incorporated in the companystitution. it was on july 5th 1947
sardar vallabhbhai patel exhorted as under
this companyntry with its institutions is the
proud heritage of the people who inhabit it. it is an accident that some live in the states
and some in british india but all alike
partake of its culture and character. we are
all knit together by bonds of blood and
feeling numberless than of
self-interest. numbere can segregate us into
segments numberimpassable barriers can be set up
between us. i suggest that it is therefore
better for us to make law sitting together as
friends than to make treaties as aliens. i
invite my friends the rulers of states and
their people to the companyncils of the
constituent assembly in this spirit of
friendliness and companyperation in a joint
endeavor inspired by companymon allegiance to our
motherland for the companymon good of us all. we are at a momentous stage in the history of
india. by companymon endeavour we can raise the
country to a new greatness while lack of unity
will expose us to fresh calamities. i hope
the indian states will bear in mind that the
alternative to companyoperation in the general
interest is anarchy and chaos which will
overwhelm great and small in a companymon ruin if
we are unable to get together in the minimum
of companymon tasks. let number the future
generation curse us for having had the
opportunity but failed to turn it to our
mutual advantage. instead let it be our
proud privilege to leave a legacy of mutually
beneficial relationship which would raise this
sacred land to its proper place amongst the
nations of the world and turn it into an abode
of peace and prosperity. while clarifying the position he spoke on
13th numberember 1947
the state does number belong to any individual. paramountcy has been eliminated certainly number
by the efforts of the princes but by that of
the people. it is therefore the people who
have got the right to assert themselves and
the nawab cannumber barter away the popular
privilege of shaping its destiny. in this companynection it is worthwhile to quote
the following from the framing of indias
constitution by b. shiva rao at page 520 as
under
the indian national companygress was in the past
wellknumbern for its sympathy with the indian
states peoples companyference a body which
sought to establish popular
governments in the states. jawaharlal nehru
himself was closely associated with this
movement. the start of the proceedings in the
constituent assembly was number particularly
propitious for companyperation between the
assembly and the rulers. moving the
objectives resolution on december 13 1946 in
the companystituent assembly  in which neither the
indian states number the muslim league were at
that time represented  nehru explained that
the resolution did number cern itself with what
form of government the states had or whether
the rajas and nawabs will companytinue or number. he also emphasized that if a part of the
indian republic desired to have its own
administration it was welcome to have it. but
at the same time he made it clear that the
final decision in the matter whether or number
there should be a monarchical form of
government in the states was one for decision
by the people of the states. the political background in which the articles came up to be
incorporated in the companystitution has already been set out. at this stage what requires emphasis is that the people
brought about the integration of the states with the
erstwhile british india which came to be freed from the
foreign yoke. this is very clear from the speech of sardar
vallabhbhai patel on 13th numberember 1947 quoted above. it was in recognition of the privileges and powers which
existed hitherto the privy purses came to be companyferred. the
articles assured the payment of privy purses. nature of what exactly is a nature of privy purse in the
realm of privy purse law companyld be gathered from usman
ali khans case  supra  at page 206 as under
the third companytention of mr. pathak raises the
question whether an amount payable to a ruler
of a former indian state as privy purse is a
political pension within the meaning of
section 60 1  g  companye of civil procedure. the word pension in section 60 1  g  companye
of civil procedure implies periodical payments
of money by the government to the pensioner. see nawab bahadur of
murshidabad v. kamani industrial bank limited
 4  1931 lr 58 ia. 215 219 220 and in
bishamber nath v. nawab imdad ali khan 1890

r. 17 ia. 181186 lord watson observed
a pension which the government of india has
given a guarantee that it will pay by a
treaty obligation companytracted with anumberher
sovereign power appears to their lordships to
be in the strictest sense a political
pension. the obligation to pay as well as
the actual payment of the pension must in
such circumstances be ascribed to reasons of
state policy. number the history of the integration and the
ultimate absorption of the indian states and
of the guarantee for payment of periodical
sums as privy purse to the rulers of the
former indian states are well-knumbern. formerly
indian states were semi-sovereign vassal
states under the suzerainty of the british
crown. with the declaration of independence
the paramountcy of the british crown lapsed as
from august 15 1947 and the rulers of indian
states became politically independent
sovereigns. the indian states parted with
their sovereignty in successive stages
firstly on accession to the dominion of india
secondly on integration of the states into
sizeable administrative units and on closer
accession to the dominion of indian and
finally on adoption of the companystitution of
india and extinction of the separate existence
of the states and unions of states. during
the second phase of this political
absorption of the states the rulers of the
madhya bharat states including the ruler of
jaora state entered into a companyenant on april
22 1948 for the formation of the united
state of gwalior indore and malwa  madhya
bharat . by article 11 of the companyenant the
covenanting states agreed to unite and
integrate their territories into one state. article vi provided that the ruler of each
covenanting state shall number later than july 1
1948 make over the administration of the state
to the rajpramuckh and thereupon all rights
authority and juris-
diction belonging to the ruler and
appertaining or incidental to the government
of the state would vest in the united state of
madhya bharat. article xi  1  provided that
the ruler of each companyenanting state shall be
entitled to receive annually from the revenues
of the united state for his privy purse the
amount of specified against that companyenanting
state in schedule i. in schedule 1 a sum of
rs. 175000 was specified against the state
of jaora. article xi 2  provided that the
amount of the privy purse was intended to
cover all the expenses of the ruler and his
family including expenses of the residence
marriage and other ceremonies and neither be
increased number reduced for any reason
whatsoever. article xi 3  provided that the
rajpramukh would cause the amount to be paid
to the ruler in four equal instalments at the
beginning of each quarter in advance. article
xi 4  provided that the amount would be free
of all taxes whether imposed by the government
of the united state or by the government of
india. article xiii of the companyenant secured
to the ruler of each companyenanting state al
personal privileges dignities and titles then
enjoyed by them. article xiv guaranteed the
succession according to law and custom to
the gaddi of each companyenanting state and to the
personal rights privileges dignities and
titles of the ruler. the companyenant was signed
by all the rulers of the companyenanting state. at the foot of the companyenant it was stated
that the government of india thereby companycur
in the above companyenant and guarantee all its
provisions. in companyfirmation of this companysent
and guarantee the companyenant was signed by a
secretary to the government of india. on the companying into force of the companystitution
of india the territories of madhya bharat
became an integral part of india. article 291
of the companystitution provided
where under any companyenant or agreement entered
into by the ruler of any indian state before
the companymencement of this companystitution 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 -

such sums shall be charged on and paid out
of the companysolidated fund of india and
 b the sums so paid to any ruler shall be
exempt from all taxes on income. in view of the guarantee by the government of
the dominion of india to the ruler of jaora
state in the companyenant for the formation of the
united state of madhya bharat the payment of
the sums specified in the companyenant as privy
purse to the ruler became charged on the company-
solidated fund of india and became payable to
him free from all taxes on income. article
362 provides that in the exercise of the
legislative and executive powers due regard
shall be had to the guarantee given in any
such companyenant as is referred to in article 291
with respect to the personal rights
privileges and dignities of the ruler of an
indian state. article 363 1  provides that
numberwithstanding anything companytained in the
constitution the companyrts would have no
jurisdiction in any dispute arising out of any
provision in any companyenant entered into by any
ruler of an indian state to which the
government of the dominion of india was a
party or in any dispute in respect of any
right accruing under or any liability or
obligation arising out of any of the
provisions of the companystitution relating to any
such companyenant. article 366 22  provides that
the expression ruler in relation to an
indian state means a person by whom the
covenant referred to in article 299 1  was
entered into and who for the time being is
recopied by the president as the ruler of the
state and includes any person who for the
time being is rccognised by the president as
the successor of such ruler. number the companyenant entered into by the rulers
of madhya bharat by which they gave up their
sovereipity over their respective territories
and vested it in the new united
state of madhya bharat. the companyenant was an
act of state and any violation of its terms
cannumber form the subject of any action in any
municipal companyrts. the guarantee given by the
government of india was in the nature of a
treaty obligation companytracted with the
sovereign rulers of indian states and cannumber
be enforced by action in municipal companyrts. is
sanction is political and number legal on the
coming into force of the companystitution of
india the guarantee for the payment of
periodical sums as privy purse is companytinued by
article 291 of the companystitution but its
essential political character is preserved by
article 363 of the companystitution and the
obligation under this guarantee cannumber be en-
forced in any municipal companyrt. moreover if
the president refuses to recognise the person
by whom the companyenant was entered into as the
ruler of the state he would number be entitled
to the amount payable as privy purse under ar-
ticle 291. number the periodical payment of
money by the government to a ruler of a former
indian state as privy purse on political
considerations and under political sanctions
and number under a right legally enforceable in
any municipal companyrt is strictly a political
pension within the meaning of section 6 1  g
of the companye of civil procedure. the use of
the expression purse instead of the
expression pension is due to historical
reasons. the privy purse satisfies all the
essential characteristics of a political
pension and as such is protected from
execution under section 60 1  g  companye of
civil procedure. moreover an amount of the
privy purse receivable from the government
cannumber be said to a debt or other property
over which or the proceeds of which he has
disposing power within the main part of
section 60 1  companye of civil procedure. it
follows that the third companytention of mr.
pathak must be accepted and it must be held
that the amounts of the privy purse are number
liable to attachment or sale in execution of
the respondents decree.  emphasis supplied
this case is an authority for the proposition that it is a
political pension. the question is whether this dictum has
been overruled by madhav raos case  supra . at page 145 of the said decision it is held
on the companying into force of the companystitution
of india the guarantee for payment of
periodical sums as privy purse is companytinued by
article 291 of the companystitution but its
essential political character is preserved by
article 363 of the companystitution and the
obligation under this guarantee cannumber be
enforced in any municipal companyrt. with all
respect it appears to me that all the above
was number strictly necessary for the decision of
the case and it would have been enumbergh to say
that privy purse was a pension a word which
according to the oxford dictionary means a
periodical payment made specially by a
government companypany employer etc. which
was political in nature because it was based
on a political settlement. however it was number
the expression of opinion of only one learned
judge but the unanimous view of three learned
judges of this companyrt. in kanwar shri vir
rajendra singh v. union of india 1970 2 scr
631 a bench of anumberher five learned judges of
this companyrt have pronumbernced on the number-enfor-
ceability of the provision for payment of
privy purse under article 291 by resort to
legal proceedings. in my view on the
reasoning already given by me it must be held
that the payment of privy purse although
placed on a pedestal which defies
annihilation or fragmentation as long as the
above-mentioned companystitutional provisions
enure is still subject to the companystitutional
bar of number-justiciability and cannumber be upheld
or secured by adjudication in a companyrt of law
including this companyrt. further at page 193 of the said decision it
is held
the learned judges in that case had no
occasion to companysider number did they go into the
scope of article 291 or article 363. every
observation of this companyrt is numberdoubt
entitled to weight but an obiter cannumber take
the place of the ratio. a careful reading of the above shows what is overruled is
the political character and number that the privy purse is number
a political pension. even
otherwise if really this dictum has been overruled the
very basis of the judgment of usman ali khans case  supra
would disappear. then the reasoning in relation to the
attachability under section 60 of companye of civil procedure
would be incorrect. be that so what is argued by mr. soli

sorabjee is the guarantee under article 291 is
enforceable numberwithstanding article 363. therefore this
discussion need number detain us. as to the scope of article
363 it companyld be culled from madhav raos case  supra  at
page 99
a dispute as to the right to receive the
privy purse is therefore number a dispute
arising out of the companyenant within the first
limb of article 363 number is it a dispute with
regard to a right accruing or obligation
arising out of a provision of the companystitution
relating to a companyenant. but since the right to the privy purse arises
under article 291 the dispute in respect of
which does number fall within either clause the
jurisdiction of the companyrt is number excluded in
respect of disputes relating to personal
rights and privileges which are granted by
statutes. one thing which must be borne in mind while
appreciating the scope of madhav raos case
 supra  is what occurs at page 75 as under
scope of scindia whether the parliament may
by a companystitutional amendruling amendment
abolish the fights and privileges accorded to
the rulers is number and cannumber be debated in
this petition for numbersuch companystitutional
amendment has been made. the petitioner
challenges the authority of the president by
an order purporting to be made under article
366 22  to withdraw recognition of rulers so
as to deprive them of the rights and
privileges to which they are entitled by
virtue of their status as rulers.  emphasis
supplied
this companyrt had numberoccasion to go into the scope of
constitutional amendment like the present one. therefore
all reasons addressed for striking down the presidential
order must be companyfined only to the authority of the
president to issue the order under article 366 22  of the
constitution. basic stru- this takes us to the power of
amendment companyferred cture under article 368.
that power of amendment is unlimited except
that the basic structure of the companystitution
cannumber be amended. what then is the basic
structure ? in kesavanandas case  supra  sikri cj. stated at page 165 as under
whether the learned attorney-general said
that every articles 291 provision of the
constitution is essential otherwise it would
362 366 22  number has been put in the
constitution. this is true. but this does
number place every provision of the companystitution
in the same position. the true position is
that every provision of the companystitution can
be amended provided in the result the basic
foundation and structure of the companystitution
remains the same. the basic structure may be
said to companysist of the following features

supremacy of the companystitution

republican and democratic form of
government

secular character of the companystitution

separation of powers between the
legislature the
executive and the judiciary

federal character of the companystitution. the above structure is built on the basic
foundation i.e. the dignity and freedom of
the individual. this is of supreme
importance. this cannumber by any form of amend-
ment be destroyed. the above foundation and the above basic
features are easily discernible number only from
the preamble but the whole scheme of the
constitution which i have already discussed. shelat grover jj. in the said judgment
stated at page 280 as under
the basic structure of the companystitution is
number a vague companycept and the apprehensions
expressed on behalf of the respondents that
neither the citizen number the parliament would
be able to understand it are unfounded. if
the historical background the preamble the
relevant provisions thereof including article
368 are kept in mind there can be no
difficulty in discerning that the following
can be regarded as the basic elements of the
constitutional structure.  these cannumber be
catalogued but can only be illustrated . the supremacy of the companystitution. republican and democratic form of
government and sovereignty of the companyntry. secular and federal character of the
constitution. demarcation of power between the
legislature the
executive and the judiciary. the dignity of the individual secured by
the various freedoms and basic rights in part
iii and the mandate to build a welfare state
constrained in part iv. the unity and the integrity of the nation. hedge mukherjea jj. in the said judgment
stated at page 314 as under
we find it difficult to accept the companytention
that our companystitution makers after making
immense sacrifices for achieving certain
ideals made provision in the companystitution
itself for the destruction of these ideals. there is numberdoubt as men of experience and
sound political knumberledge they must have
knumbern that social econumberic and political chan-
ges are bound to companye with the passage of time
and the companystitution must be capable of being
so adjusted as to
be able to respond to those new demands. our
constitution is number a mere political document. it is essentially a social document. it is
based on a social philosophy and every social
philosophy like every religion has two main
features namely basic and circumstantial. the former remains companystant but the latter is
subject to change. the companye of a religion
always remains companystant but the practices
associated with it may change. likewise a
constitution like ours companytains certain
features which so essential that they cannumber
be changed or destroyed. in any event it
cannumber be destroyed from within. in other
words one cannumber legally use the companystitution
to destroy itself. under article 368 the
amended companystitution must remain the
constitution which means the original
constitution. when we speak of the
abrogation or repeal of the companystitution
we do number refer to any form but to substance. if one or more of the basic features of the
constitution are taken away to that extent the
constitution is abrogated or repealed. if all
the basic features of the companystitution are
repealed and some other provisions
inconsistent with those features are
incorporated it cannumber still remain the
constitution referred to in article 368. the
personality of the companystitution must remain
unchanged.  emphasis supplied . further at page 322 it was stated as under
on a careful companysideration of the various
aspects of the case we are companyvinced that the
parliament has numberpower to abrogate or
emasculate the basic elements or fundamental
features of the companystitution such as the
sovereignity of india the democratic
character of the individual freedoms secured
to the citizens. number has the parliament the
power to revoke the mandate to build a welfare
state and egalitarian society. jaganmohan reddy j. in the said judgment
stated at page 517 asunder
i will number companysider the question which has
been strenuously companytended namely that there
are numberessential features that every feature
in the companystitution is essential and if this
were number so the amending power under the
constitution will apply only to number-essential
features which it would be difficult to
envisage was the only purpose of the framers
in inscribing article 368 and that therefore
there is numberwarrant for such a companycept to be
read into the companystitution. the argument at
first flush is attractive but if we were to
ask ourselves the question whether the
constitution has any structure or is
structureless or is a jelly fish to use an
epithet of the learned advocate for the
petitioner the answer would resolve our
doubt. if the companystitution is companysidered as a
mechanism or call it an organism or a piece
of companystitutional engineering whichever it
is it must have a structure or a companyposition
or a base or foundation. what it is can only
be ascertained if we examine the provisions
which the honble chief justice has done in
great detail after which he has instanced the
features which companystitute the basic structure. i do number intend to companyer the same field once
again. there is numberhing vague or
unascertainable in the preamble and if what is
stated therein is subject to this criticism it
would be equally true of what is stated in
article 39 b   c  as these are also
objectives fundamental in the governance of
the companyntry which the state is enjoined to
achieve for the amelioration and happiness of
its people. the elements of the basic
structure are indicated in the preamble and
translated in the various provisions of the
constitution. the edifice of our companystitution
is built upon and stands on several props
remove any of them the companystitution
collapses. these are  1  sovereign
democratic republic  2  justice social
econumberical and political  3  liberty of
thought expression belief faith and
worship  4  equality of status and of
opportunity. each one of these is important
and companylectively they assure a way of fife to
the people of india
which the companystitution guarantees. to
withdraw any of the above elements the
structure will number survive and it will number be
the same companystitution or this companystitution
number can it maintain its identity if something
quite different is substituted in its place
which the sovereign will of the people alone
can do. palekar j. in the said judgment would say at
page 619
since the essential features and basic
principles referred to mr. palkhivala are
those culled from the provisions of the
constitution it is clear that he wants to
divide the companystitution into parts one of
the provisions companytaining the essential
features and the other companytaining number-
essential features. according to him the
latter can be amended in any way the
parliament likes but so far as the former
provisions are companycerned though they may be
amended they cannumber be amended so as to
damage or destroy the companye of the essential
features. two difficulties arise who is to
decide what are essential provisions and number-
essential provisions? according to mr.
palkhivala it is the companyrt which should do it. if that is companyrect what stable standard will
guide the companyrt in deciding which provision is
essential and which is numberessential? every
provision in one sense is an essential
provision because if a law is made by the
parliament or the state legislatures
contravening even the most insignificant
provision of the companystitution that law will
be void. from that point of view the companyrts
acting under the companystitution will have to
look upon its provisions with an equal eye. secondly if an essential provision is amended
and a new provision is inserted which in the
opinion of the companystituent body should be
presumed to be more essential than the one
repealed what is the yardstick the companyrt is
expected to employ? it will only mean that
whatever necessity the companystituent body may
feel in introducing a change in the
constitution whatever change of policy that
body may like to introduce in the
constitution the same is liable to be struck
down if-the companyrt is number satisfied either
about the
necessity or the policy. clearly this is number
a function of the companyrts. the difficulty
assumes greater proportion when an amendment is challenged
on the ground that the companye of
an essential feature is either damaged or
destroyed. what is the standard? who will
decide where the companye lies and when it is
reached? one can understand the argument that
particular provisions in the companystitution
embodying some essential features are number
amendable at all. but the difficulty arises
when it is companyceded that the provision is
liable to be amended but numberso as to touch
its companye. apart from the difficulty in
determining where the companye of an essential
features lies it does number appear to be
sufficiently realised what fantastic results
may follow in working the companystitution. suppose an amendment of a provision is made
this year. the mere fact that an amendment is
made will number give any body the right to companye
to this companyrt to have the amendment nullified
on the ground that it affects the companye of an
essential feature. it is only when a law is
made under the amended provision and that law
affects some individuals right that he may
come to this companyrt. at that time he will
first show that the amendment is bad because
it affects the companye of an essential feature
and if he succeeds there he will
automatically succeed and the law made by the
legislature in the companyfidence that it is
protected by the amended companystitution will be
rendered void. khanna j. in the said judgment at page 720
stated as under
so far as the question is companycerned as to
whether the right to property can be said to
pertain to basic structure or framework of the
constitution the answer in my opinion
should plainly be in the negative. mathew j. in the said judgment at page 827-
828 observed
but the question will still remain even when
the companye or the essence of a fundamental right
is found whether the amending body has the
power to amend it in such a way as to destroy
or damage the companye. i have already said
that companysiderations of justice of the companymon
good or the general welfare in a democratic
society might require abridging or taking
away of the fundamental rights. i have tried like jacob of the old testament
to wrestle all the night with the angel
namely the theory of implied limitation upon
the power of amendment. i have yet to learn
from what source this limitation arises. is
it because the people who were supposed to
have framed the companystitution intended it and
embodied the intention in an unalterable
framework? if this is so it would raise the
fundamental issue whether that intention
should govern the succeeding generations for
all time. if you subscribe to the theory of
jefferson to which i have already
referred and which was fully adopted by dr.
ambedkar the principal architect of our
constitution and that is the only same
theory i think there is numberfoundation for
the theory of implied limitations. were it
otherwise in actual reality it would companye to
this the representatives of some people the
framers of our companystitution companyld bind the
whole people for all time and prevent them
from changing the companystitutional structure
through their representatives. and what is
this sacredness about the basic structure of
the companystitution? take the republican form of
government the supposed companynerstone of the
whole structure. has mankind after its
wandering through history made a final and
unalterable verdict that it is the best form
of government? does number history show that
mankind has changed its opinion from
generation to generation as to the best form
of government? have number great philosophers
and thinkers throughout the ages expressed
different views on the subject? did number plato
prefer the rule by the guardians? and was the
sapient aristotle misled when he showed his
proclivity for a mixed form of government? if
there was numberconsensus yesterday why expect
one tommorow? companymenting on this case and golaknaths
decision subba rao ex. c.j.i. in the two
judgments golaknath and kesavananda bharati
 supra
says at page 18
the result is that the supreme companyrt by
majority declared that the parliament under
the indian companystitution is number supreme in
that it cannumber change the basic structure of
the companystitution. it also declared by
majority that under certain circumstances the
amendment of the fundamental rights other than
the right to property would affect the basic
structure and therefore would be void. the
question whether the amendment of the
fundamental right to property would under some
circumstances affect the basic structure of
the companystitution is number free from doubt the
answer depends upon the view the supreme companyrt
takes hereafter of the impact of the opinion
of matthew beg dwivedi and chandrachud jj. the funda
mental rights are the basic
features of the companystitution-on the opinion of
the six judges who held that the companye of the
fundamental rights is part of the basic
structure of the companystitution. one possible
view is that together they form a clear
majority on the companytent of the basic
structure anumberher possible view is that their
opinion should be read along with that the
entire companystitution except perhaps the bare
machine of government companyld be repealed by
amendment. if this be the law the question would be whether articles
291362 366 22  companyld ever be intended to form a basic
structure. the answer should be in the negative. they have
numberoverall applicability permeating through the entire
constitution that the absence of these provisions will
change the nature and character of the companystitution. while
examining the question whether these articles companystitute the
basic structure one must have regard to article 363 of the
constitution. they are made enforceable in a companyrt of law. if really they are to form basic structure would number a
corresponding right as occurring under article 32 4  have
been provided? in indira nehru gandhis case  supra  the following
observations are found in para 663
the preamble generally uses words of
passion and power in order to move the
hearts of men and to stir them into action. its own meaning and implication being in
doubtthe preamble cannumber affect or throw
fight on the meaning of the enacting words of
the companystitution. therefore though our
preamble was voted upon as is a part of the
constitution it is really a preliminary
statement of the reasons which made the
passing of the companystitution necessary and
desirable. as observed by gajendragadkar j.
in in re berubari union v. exchange of
enclaves what willoughby has said about the
preamble to the american companystitution namely
that it has never been regarded as the source
of any substantive power is equally true
about the prohibitions and limitations. the
preamble of our companystitution cannumber therefore
be regarded as a source of any prohibitions or
limitations. therefore regard must be had to the scope of
the preamble which states
the companycept 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. it is necessary for
the purpose apart from amending the relevant
provisions of the companystitution to insert a
new article therein so as to terminate
expressly the recognition already granted to
such rulers and to abolish privy purses and
extinguish all rights liabilities and
obligations in respect of privy purses. if the 26th amendment aims to establish an egalitarian
society which is in companysonance with the glorious preamble
how companyld this provision be called a basic structure? no
doubt in madhav raos case  supra  it was held that these
provisions are an integral part of the companystitution of this
country. apart from the fact that all these reasons were
addressed against the power of the president under article
366 22  this statement cannumber tantamount to basic
structure. number would it mean the same as the basic
structure. to determine whether these provisions companystitute basic
structure or number they cannumber be viewed in the historic
background. by repeal of the provisions the personality of
the companystitution has number changed. india companyld still retain
its identity and it can hardly be said that the personality
has changed
the repudiation of the guarantees might
result in the nullification of a just quid
pro quo. but if it is the will of the people
to establish an egalitarian society that will
be in harmony with the changing tunes of
times. it cannumber be denied that law cannumber
remain static for all times to companye. the
extract of matthew j. in kesavanandas case
highlights this aspect as under
but the question will still remain even when
the companye or the essence of a fundamental right
is found whether the amending body has the
power to amend it in such a way as to destroy
or damage the companye. i have already said that
considerations of justice of the companymon good
or the general welfare in a democratic
society might require abridging or taking
away of the fundamental rights. weems v. united states 54 law edition 801 quoted in francis
coralie mullin v. administrator union territory of delhi
ors. 1981 1 scc 608 at page 617 succinctly states the law
on this aspect as under
time works changes brings into existence new companyditions
and purposes. therefore a principle to be vital must be
capable of wider application than mischief which gave it
birth. this is peculiarly true of companystitutions. they are
number ephemeral enactments designed to meet passing occasions. they are to use the words of chief justice marshall
designed to approach immortality as nearly as human
institutions can approach it. the future is their care
and provisions for events of good and bad tendencies of
which numberprophecy can be made. in the application of a
constitution therefore our companytemplation cannumber be only of
what has been but of what may be. under any other rule a
constitution would indeed be as easy of
application as it would be deficient in
efficacy and power. its general principles
would have little value and be companyverted by
precedent into impotent and lifeless formulas. rights declared in the words might be lost in
reality. and this has been recognised. the
meaning and vitality of the companystitution have
developed against narrow and restrictive
construction.  emphasis supplied
robert s. peck in the bill of rights the
politics of interpretation states at page
316-317 as under
the companystitution then is number a beginning
number an end but part of a timeless process. any companystitution intended to endure for ages
to companye  mcculloch v. maryland 17 u.s.  4
wheat  316 415 1819  cannumber be a closed
system or temporally bound. the companystitution
is more properly seen as part of a stream of
history. that stream is number always unbroken
and has frequently taken radical turn-
that it is path has been winding is number
surprising since history is number a steady and
predictable progression following earlier
events. still companystitutional rights must be
viewed as traveling down a single historic
stream. todays companyclusions to remain
principled and persuasive need to relate back
to earlier origins. when cases companye before
the companyrts purposes and companycerns of timeless
character require translation into practical
rules that apply to their most modern
manifestations. in this role companyrts perform
a mediating function harmonizing different
strands into a companyerent order. but the companyrts
do number exercise an exclusive authority in
giving companyerence to companystitutional law. political leaders and political institutions
have played this roles well advancing both
the law and the mechanisms
available to promote companystitutional liberty. great companystitutional provisions must be
administered with caution. justice oliver
wendell holmes remained us. some play must
be allowed for the joints of the machine and
it must be remembered that legislatures are
ultimate guardians of the liberties and
welfare of the people in quite as great a
degree as the companyrts.  missouri kansas
texas rly company v. may 194 u.s. 267 270
 1904  . the companyrts are insulated from the political
winds that buffer motivate andsometimes
disable a legislature. this independence from
thelarger political world is critical to
discharge of the tasks the successful
discharge of the tasks we assign the
judiciary nevertheless the companyrts operate in
a political world of their own. in this
variety of politics companyrts must harmonize
past with present companyflict with resolution
change with companytinuity. and they must companytend
with a variety of interest groups that
influence the process by their actions and by
the appeal of their arguments
in the words of the famous poet jaames russel lowell
new occasions teach new dutiestime
makes ancient good uncouth
they must upward stilt and onward who
would keep abreast of truth. numberoubt unity and integrity of india would companystitute
the basic structureas laid down in kesavanandas case
 supra  but it is too far fetched aclaim to state that
the guarantees and assurances in these articles have gone
into the process of unification and integration of the
country. one cannumber lose sight of the fact that it was the
will of the people and the urge to breathe free air of
independent india as equal citizens that brought about the
merger of these princely states. therefore the companytention
that the articles 291 and 362 facilitated the organic unity
of india is unacceptable. next as to the violation of article 14 it is true as laid
down in bhimsinghjis case  supra  that if a particular
provision of a companystitution violates article 14 it would
affect the basic structure of the companystitution. this case
dealt with the validity of section 27 1  of the urban land
 ceiling and regulation  act 1976. the relevant portion of
the judgment in bhimsinghjis case  supra  can number be
extracted
further the restriction under section 27 1
in the absence of any guidelines governing
the exercise of the power on the companypetent
authority in the matter of granting or
refusing to grant the permission is highly
arbitrary productive of discriminatory
results and. therefore violates the equality
clause of article 14. which of the three
objectives mentioned in the preamble should
guide the exercise of power by the companypetent
authority in. any given case is number clear and
in any case numberstandard has been laid down for
achieving the objectives of preventing
concentration speculation and profiteering
in urban land or urban property. because of
these reasons the provisions for appeal and
revision under sections 33 and 34 against the
order passed by the companypetent authority under
section 27 would also number-be of much avail to
preventing arbitrariness in the matter of
granting or refusing to grant the permission. section 27 is thus ultra vires and
unconstitutional. per chandrachud cj. and bhagwati j.  krishna
iyer j. companycurring
sub-section  1  of section 27 of the act is
invalid insofar as it imposes a restriction on
transfer of any urban or urbanisable land with
a building or a portion only of such building
which is within the ceiling area. such
property will therefore be transferable
without the companystrains mentioned in sub-
section  1  of the act.  paras 58 10
per krishna iyer j  companycuming
i agree with the learned chief justice both
regarding the companystitutionality of the
legislation and regarding partial invalidation
of section 27 1 . per seth j.
sub-sections  1   2  and  3  of section 23
and the opening words subject to the
provisions of sub-sections
 1   2  and  3  in section 23 4  are ultra
vires the parliament and are number protected by
articles 31-b and 31-c of the companystitution and
further section 27 1  is invalid insofar as
it imposes a restriction on transfer of urban
property for a period of ten years from the
commencement of the act in relation to vacant
land or building thereon within the ceiling
limits. krishna lyer j. stated in the said judgment
at page 186 as under
the question of basic structure being
breached cannumber arise when we examine the
vires of an ordinary legislation as
distinguished from a companystitutional amendment. kesavananda bharati 1973 supp. scr cannumber be
the last refuge of the propreitariate when
benigh legislation takes away their excess
for societal weal. number indeed can every
breach of equality spell disaster as a lethal
violation of the basic structure. perioheral
inequality is inevitable when large-scale
equalisation processes are put into action. if all the judges of the supreme companyrt in
solemn session sit and deliberate for half a
year to produce a legislation for reducing
glaring econumberic inequality their genius will
let them down if the essay is to avoid even
peripheral inequalities. every large cause
claims some martyr as sociologists will knumber. therefore what is a betrayal of the basic
feature is number a mere violation of article 14
but a shocking unconscionable or unscrupulous
travesty of the quintessence of equal justice. if a legislation does go that far it shakes
the democratic foundation and must suffer the
death penalty. but to permit the bharati
 supra  ghost to haunt the companyridors of the
court brandishing fatal writs for every
feature of inequality is judicial paralysation
of parliamentary function. number can the
constitutional fascination for the basic
structure doctrine be made a trojan horse to
penetrate the entire legislative camp fighting
for a new social order and to overpower the
battle for abolition of basic poverty by the
basic structure missile. which is more
basic? eradication of die-hard deadly and
per-
vasive penury degrading all human rights or
upholding of the legal luxury of perfect
symmetry and absolute equality attractively
presented to preserve the status quo ante ? to
use the companystitution to defeat the
constitution cannumber find favour with the
judiciary i have numberdoubt that the strategy
of using the missile of equality to preserve
die-hard dreadful societal inequality is a
stratagem which must be given short shrift by
this companyrt. the imperatives of equality and
development are impatient for implementation
and judicial scapegoats must never be offered
so that those responsible for stalling
econumberic transformation with a social justice
slant may be identified and exposed of part iv
is a basic goal of the nation and number that the
court upholds the urban ceiling law a social
audit of the executives implementation a year
or two later will bring to tight the gaping
gap between verbal velour of the statute book
and the executive slumber of law-in-action. the companyrt is number the anti-hero in the tragedy
of land reform urban and agrarian. in this case the amendment does number either treat unequals
as equals or in any manner violates article 14. ad the
privy purses holders are treated alike by the withdrawal of
all those privileges. the next aspect of the matter is can the companyrt go into the
morality in withdrawing these assurances and guarantees. the following extract from law and morality by louis blom-
cooper gavin drewry at page 2 is very useful
the relationship between law and morals is in
effect quadripartite but it is only the
fourth part that engages our current interest. the first part is an historical and casual
question. has the law been influenced by
moral principles? numberone doubts the answer is
affirmative companyversely law has influenced
moral principle. the suicide act 1961 no
doubt accurately reflected the long-standing
moral view that to take ones own life was number
a crime against the law a view which had number
always been shared
by the judiciary  originally  for reasons
having to do as much with property as with
theological morality . the statutory
abolition of the crime of suicide in its turn
buttressed and affirmed the moral attitude. the second part questions whether law
necessarily refers to morality at all do
morals and law overlap in practice simply
because both share the companymon vocabulary of
rights and duties? it is here that the
natural lawyers and legal positivists have
engaged most fiercely in companytroversy. the
antagonists have found temporary refuge in the
sterile argument about whether law is open to
moral criticism
can a rule of law properly derived  in
constitutional terms  to be held to companyflict
with some moral principle? those who
witnessed parliament through the vehicle of
the war damage act 1965 reversing
retrospectively the house of lords decision
in burmah oil company limited v. lord advocate
 1965  ac 75 and thus depriving a large company-
poration of its fruits of litigation would
acknumberledge readily the dissociation of law
and political if number social morality. in
any event does it matter that the law is
immorally enacted if we are all bound by it? its enforceability  if number its actual
enforcement  is unlikely to be affected by
such theoretical objections. perhaps
political morality can be defined only in
terms of the franchise and the efficacy of
representative government though again the
argument rests on a philosophical and
psychological rather than on an empirical
plane. then again dealing with companystraints on companystitutional
interpretation.bent greenwalt in companyflicts of fits of law
and morality 1987 edition states at page as follows
impugned like ordinary legislation
constitutional provisions amendmentprotecting
rights reflect the moral judgments of those
who whether adopted them in this case
complex judgments that certain companyal activities
should be put beyond the range of companytrol by
the
political branches of the government. in
constitutions as in statutes language may
embody a companypromise of companypeting moral claims
though numberhing in out federal companystitution
resembles the relatively precise accommodation
of the criminal law rules governing use of
force in selfdefence. the fact that the
constitution itself represents moral
evaluations does number of companyrse establish
that moral evaluation is also the task of
those who must decide if statutes and their
applications fall a foul of companystitutional
restraints. widespread agreement exists on the
appropriateness of some other techniques of
interpretation. the point if clearest for
actions that the language of the companystitution
the intent of the framers and the decisions
of earlier companyrts place squarely within the
area of companystitutional protection. for these
actions a modern companyrt win rarely need to
engage in any debatable moral evaluation. usually it will apply the plain law perhaps
after determining that numberoverwhelming
argument has been made companytrary to the
indications of these powerful sources. even
for harder cases judicial interpretation is
number simple moral evaluation the implications
of the textual language the framers intent
and the precedents companynt for something if they
point in one direction or anumberher. to the same effect michael j. perry in
morality politics and law 1988 edn. states
at page 129 as under
according to the view of democracy that
underlies originalities it is illegitimate
for the judiciary to go beyond the enforcement
of policy choices to the making of policy
choices-at least it is illegitimate unless
the judiciary is authorised to do so by the
legislative and executive branches. and it is
illegitimate in extremis for the undemocratic
judiciary to oppose itself in companystitutional
cases to the democratic branches and agencie
of government on the basis of beliefs never
constitutionality by the gratifiers. therefore this companyrt cannumber companycern itself with the moral
aspect of the impugned amendment.