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PETITIONER: H.   H. MAHARAJADHIRAJA MADHAV RAO JIWAJI RAOSCINDIA BAHADUR

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 15/12/1970

BENCH: SHAH, J.C. BENCH: SHAH, J.C. HIDAYATULLAH, M. (CJ) SIKRI, S.M. SHELAT, J.M. BHARGAVA, VISHISHTHA MITTER, G.K. VAIDYIALINGAM, C.A. HEGDE, K.S. GROVER, A.N. RAY, A.N. DUA, I.D.

CITATION:  1971 AIR  530            1971 SCR  (3)   9  1971 SCC  (1)  85  CITATOR INFO :  R          1972 SC 202  (7)  RF         1973 SC1461  (186,700,703,1100,1609,2152,21  RF         1975 SC2299  (275,637)  E          1976 SC1207  (46,546)  D          1977 SC1361  (192)  R          1978 SC 803  (30,34)  R          1981 SC1284  (1)  RF         1982 SC 710  (25)  RF         1986 SC1126  (47)  D          1987 SC 522  (51)  R          1987 SC1010  (71)  RF         1989 SC1534  (11)

ACT: Constitution   of  India,  1950-Article  366(22)-Scope   of- Recognition  of  Rulers  by  President-Order  by   President "derecognising"  all  Rulers--Validity  of  order-Power,  if political-If exercise of paramountcy rights. Constitution of India 1950-Article 291-Article if creates an obligation  to pay Privy Purse-Repudiation of obligation  if act  of  State--"Charged on .... the  Consolidated  Fund  of India",  meaning  of-Article  if a  provision  relating  to" covenant within the meaning of Article 363. Constitution   of  India,  1950-Article   363-Exclusion   of jurisdiction   of  Courts-Scope  of  exclusionary   clauses- Determining  the meaning of articles 366(22), 291,  362  and 363,  if within bar of Article 363-"Dispute arising  out  of provision of the Constitution relating to covenant", meaning Artic le if "recreation" of paramountcy. Constitution  of  India,  1950-Article  362-If  a  provision "relating  to" Covenent etc. within the meaning  of  Article 363. Constitution  of  India, 1950-Articles 19(1)(f) and  31  and Article  32-Order of President under Article  366(22)--Order

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of  President under Article 366(22) "derecognising"  Rulers- Repudiation  of liability to pay Privy Purse and  denial  of rights  and privileges-If violation of  fundamental  rights- Maintainability of petition-Privy Purse-If property.

HEADNOTE: On  the promulgation of the Indian Independence  Act,  1947, the  Princely States adjoining the Dominion of India  merged with  the  Dominion  of India.  The  instruments  of  merger provided for_the integration of the States and guaranteed to the Rulers the Privy Purse, succession according to law  and custom  to  the  gaddi of the  State  and  personal  rights, privileges,  dignities and titles.  These  instruments  were concurred  in  and  guaranteed by  the  Dominion  of  India. Later,  the States integrated with the Union of India  under the  Constitution of India, 1950, the Rulers abandoning  all authority   in   regard  to  their   territories.    Special provisions were enacted in the Constitution regarding  Privy Purses  and  the  rights and  privileges  of  the  erstwhile Rulers.   By  article  291,  the  sum-,  guaranteed  by  the Dominion  of  India to any Ruler as Privy  Purse  under  any covenant  or agreement was to be charged on and paid out  of the Consolidated Fund of India and the. sums so paid were to be  exempt  from all taxes on income.  By  article  362  the Parliament, the State Legislatures and the executive of  the Union and the States were enjoined to have due regard to the guarantees and assurances under the covenants and agreements between  the  Governments of the Dominion of India  and  the heads  of the former Indian States.  Also,  provisions  were made in various statutes conferring on the "Rulers"  certain privileges  and  benefits.  By Art. 366(22)  a  "Ruler"  was defined  to mean the prince, chief or other person  by  whom covenant and agreements. were entered into and who "for  the time being" was recognised by the President as the Ruler and included any person who "for the time being" 10 was  recognised  by the President as the successor  of  such Ruler. Article 363  excluded the jurisdiction of the Supreme Court and all other courts "in     respect  of  any  dispute arising  out  of  any  provision  of  a  treaty,  agreement, covenant  etc." or in any dispute "in respect of  any  right accruing under or any liability or obligation arising out of any  of the provisions of the Constitution relating  to  any such treaty, agreement, covenant" etc. On  September  2, 1970, a Bill  intituled  the  Constitution (Twenty  Fourth  Amendment) Bill 1970,  and  providing  that "Articles 291 and 362 of the Constitution and clause (22) of article  366  shall  be  omitted"  was  introduced  in   the Lok  Sabha.  The Bill was declared passed.  On September  5, 1970,  the  motion  for consideration of the  Bill  did  not obtain in the Rajya Sabha the requisite majority of not less than  two-thirds  of  the  members  present  and  voting  as required  by Art. 368 of the Constitution.  The  motion  for introduction  of  the Bill was declared lost.  A  few  hours thereafter  the President of India, purporting  to  exercise power under cl. (22) of Art. 366 of the Constitution  signed an instrument withdrawing recognition of all the Rulers.   A communication to the effect was sent to all Rulers in  India who had been previously recognised under art. 366(22) of the Constitution. The  petitioners  moved  this Court under  Art.  32  of  the Constitution   challenging  the  order  of   the   President "derecognising"  them as unconstitutional, ultra  vires  and

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void.   They  contended that the President had no  power  to withdraw recognition of Ruler once recognised; that assuming the  President  had such power, exercise of  the  power  was coupled with duty to recognise his successor; that the order of  the  President "derecognsing" all the  Rulers  en  masse amounted  to  arbitrary exercise of power for  a  collateral purpose; that the Order violated the constitutional mandates in  articles  291  and  362; that  article  291  created  an obligation in the Union of India to pay the Privy Purse  and Privy  Purse  was  property; and that the  Order  being  one without  authority  of law infringed the  guarantee  of  the fundamental  rights under Arts. 19(1)(f), 21 and 31  of  the Constitution.   The  Union of India contended,  inter  alia, that the petition was not maintainable, because, the  source of  the right to receive the Privy Purse and to be  accorded the  privileges  claimed was a political agreement  and  the privy  purse was in the nature of a political pension;  that in  recognising  or  derecognising  a  ruler  the  President exercised a political power which was a sovereign power  and that the rights and obligations were liable to by varied  or repudiated  in  accordance  with "State  policy";  that  the jurisdiction of the Courts to enforce rights and obligations arising  out  of  the covenant was  excluded,  because,  the rights  and obligations arose out of act of state; that  the concept of paramountly of the British Crown was inherited by the  Union of India and therefore recognition  of  Rulership was  a  "gift  of  the  President";  and  further  that  the petitioners  stood excluded by article 363, for,  they  were seeking  either to enforce the covenants and  agreements  or were  seeking to enforce the provisions of the  Constitution "relating to" such covenants. HELD:     Per Hidayatullah, C.J. Shah, Vaidialingam,  Hedge, Grover and Dua, JJ. (Mitter and Ray, JJ. dissenting). The  Order  of the President "derecognising" the  Rulers  is ultra vires and illegal. [69 G; 100 C] (Per  Hidayatullah,  C.J. (1) The action  of  the  President withdrawing recognition of all Rulers is ultra vires article 366(22)  and a nullity.  Article 366(22)  neither  expressly nor  by  implication places the power in the  hands  of  the President to say that although a Ruler is in existence or 11 a  successor  is available there shall be no  ruler  of  any particular state.  The definition contemplates the existence of the Ruler "for the time being".  The phrase "for the time being" cannot mean that any person can be appointed who  has no claim whatever or that temporary appointments may be made or  that no appointment need be made.  The continuity  of  a Ruler of an Indian State is obligatory so long as the  Ruler is  alive  or a successor can be found.  The  obligation  to recognise  a  Ruler is bound up with  the  other  guarantees contained  in  articles 291 and 362 and  the  definition  in article  366(22)  is  merely the key to  find  a  particular Ruler.   The withdrawal of recognition from all  the  Rulers renders the guarantees, as also the relevant articles of the Constitution, inoperative. [58 A-H] (ii) The  right  to recognise a ruler, from out  of  several claimants, is not an act of paramountcy.  The selection  has to  be in accordance with law and custom.  The  Constitution gave the right to the President to recognise a Ruler for the time being; but it cannot be stretched to give a paramountly of the same character as that enjoyed by the British  Crown. To  claim such a paramountcy one has to,  ignore  completely the  arrangements  by  which the Rulers  parted  with  their territories  and  ruling rights and were  assured  of  their privy  purses  and privileges.  The  rights  became  consti-

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tutionally  protected  rights which so long as  the  Ruler’s line  was  not extinct belonged to the Ruler "for  the  time being.   In  short, when the guarantees were  given  by  the Constitution, paramountcy if any, went out.  Article 362  is the  converse of paramountcy inasmuch as it compels the  two limbs of government to have "due regard"’ to the  guarantees and assurances given to the Rulers.  Nor can article 363  be said  to "recreate" paramountcy.  That article was  intended to  keep  certain matters outside the  jurisdiction  of  the courts.  The Rulers are citizens of India and the  President or  the  Government of India cannot invoke the  doctrine  of paramountcy to sustain an illegal inroad upon the rights  of citizens. [51 H-52 B] (iii)     The  argument based on act of state is not of  any more validity.  An ’Act of State’ is not available against a citizen.  It is a sovereign act which is neither grounded in law  nor  does it pretend to be so.  It is  "a  catastrophic change  constituting a new departure".  Since there  are  no sovereign  or political powers under our Constitution  every action  of  the  executive  limb  of  government  must  seek justification  in some law.  The very existence  of  article 363, which it is said incorporates some kind of  paramountcy or  act  of state, shows that there is  no  political  power outside  the law; otherwise an additional bar  would  hardly have  been necessary. [53 B] Salaman v. Secretary of State for India, [1966] I K.B.  613, State  of Saurashtra v. Menon Haji Ismail, [1960]  1  S.C.R. 537 and Secretary of State in Council for India v.  Kamachee Boye Sahaba, [1859] 13 Moore P.C. 22, referred to. (iv) Covenants  and  agreements  cannot be  said  to  create "imperfect  obligations"  since the Constitution  takes  the matter into itself and gives them its own guarantees.  In so far  as those guarantees became a part of  our  Constitution and  were  included in various statutes they  would  be  en- forceable  according  to the tenor of the  Constitution  and other laws subject, of course, to any bar created by article 363. [L55 G] G.   Gibson & Ors.  Assignees of J. Mallandaino, Bankrupt v. The Eas India Co., 132 E.R. 1105, Peter Pazmany  University, (Series  A/B  No. 61 p. 231) Jurisdiction of the  Courts  of Danzing, Advisory Opinion No. 15, Series B. No. 15 and State of Rajasthan v. Shyam Lal,[1964] 7 S.C.R. 174 referred to. L744Sup CI/71 12 (v)  It is not open to the petitioner to describe the action of  the President as wanting in good faith without  pleading any collateral fact.  Further, the reasons for a decision by the  President  cannot be probed into in  view  of  articles 74(2) and 361(1). [56 E] (vi) The  argument  on  behalf of the Union  of  India  that article 291 only lays down the source and manner of  payment but creates no right to claim, receive or enforce payment is a complete misreading of the article.  Article 291 makes the amount payable to the Ruler and, therefore, creates a  right in  him to demand it.  The words "shall be charged and  paid out  of etc." make the payment obligatory and when  expanded the  words read "shall  be charged on and shall be paid  out of"  etc.   The direction to pay is in no  uncertain  terms. The recipient is mentioned in cl. (b) where the article says ’and the sums so paid to any Ruler’ and this shows who is to be  paid.  Therefore, the Article in addition to the  source and  manner  also lays down that it shall be paid  and  paid free of taxes on income to the Ruler.  The article is  self- supporting and self-ordaining.  The result of charging a sum on the Consolidated Fund is to provide that this destination

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shall  not  be altered even by vote of  Parliament  and  the charging  is sufficiently effective for ensuring  the  right application. [62 D-63 B] (vii)     Article   363   does  not  bar   relief   to   the petitioners.  The words provisions of this Constitution’  in the  latter  part of article 363 arc not  left  unqualified. The  draftsmen  would have referred to the  numbers  of  the articles  if  disputes of every kind  under  those  articles stood  excluded.   The  requirement is that  it  must  be  a provision  "relating" to a treaty, covenant etc.  The  words ’relating  to’  mean  that  the  provision  must  bear  upon treaties  etc. as its dominant purpose or theme; it  is  not sufficient   if  treaties  are  mentioned  there  for   some collateral purpose.  So tested, [65 D-E] (a)  Article  362  is  a provision  relating  to  a  treaty, covenant etc.  Its dominant theme is ’the rights, privileges and  dignities of the Rulers under covenants and  agreements and,  therefore the provision is one relating  to  covenants and agreements. [65 G-H] (b)  Article  366(22)  has  for  its  dominant  purpose  the selection of Rulers through the application of the  covenant and  agreements.   When the President acts-within  the  four corners  of  his authority the matter is barred  by  article 363.    What  the  President  has  done  is  to  take   away recognition ’from all Rulers and such a power does not  flow from  article  366(22) and the bar of article 363  does  not apply  to such a dispute.  The dispute arises  neither  from the   covenants  etc.  nor  from  the  provisions   of   the Constitution.   Therefore, it ceases to have the  protection of article 363. [66 C H] (c)  Article  291 is not a provision relating  to  covenants and  agreements  but a special provision for the  source  of payment of Privy Purse by charging them on the  Consolidated Fund and for making the payment free of taxes on income;  it does  not  in  its dominant purpose  and  theme  answer  the description in the latter part of article 363.  The  mention in  Art.  291  of covenants and agreements is  for  its  own purpose so that the amounts need not be specified. [67  H-68 B] [His  Lordship did not express any opinion on  the  question whether withdrawal of recognition on grounds which are sound and sufficient is capable of being questioned in a court  of law.] 13 (viii)    The petitions are maintainable under article 32 of the  Constitution.   The obligation to pay the  Privy  Purse being absolute the right to claim when due subsists in  each ruler.   As  soon as an appropriation Act  is  passed  there established  credit-debt  and the  outstanding  Privy  Purse becomes  the  property  of the Ruler in  the  hands  of  the government.   It  is  also  a  sum  certain  and  absolutely payable.   Therefore Privy Purse is property and any  action to  deprive  the  Rulers of their Privy Purses  must  be  an infringement of articles 19 and 31. [60 F; 62 0. 59 H] H.H.  The  Maharana  Sahib Shri  Bhagwat  Singh  Bahadur  of Udaipur  v.  The  State of Rajasthan,  [1964]  5  S.C.R.  1, Madhaorao Phalka v. State of Madhya Bharat, [1961] 1  S.C.R. 967,  State  of Madhya Pradesh v. Ranojirao Shinde  &  Anr., [1968]  3  S.C.R. 489 and Standard Marine Insurance  Co.  v. Board of Assessors, 128 La. 717, referred to. Langdell, Summary of the Law of Contract, P. 124  Blackstone Commentaries Vol. II XXV pp. 390-398, referred to. (Per Shah, Sikri, Shelat, Bhargava, Vaidialingam, Grover and Dua, JJ.) (1)  By  the provisions enacted in article 366(22), 291  and

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362  of the Constitution, the privileges of Rulers are  made an  integral  part of the Constitution and  they  cannot  be deprived  of  these privileges arbitrarily.   Granting  that under clause (22) of Art. 366 the President may withdraw the recognition  of  a person as a Ruler, the power  to  nullify important provisions of the Constitution does not flow ’from that  clause.  The power conferred by the clause has  to  be exercised consistently with and in aid of the constitutional scheme.   The power may be exercised, in the case  of  first recognition,  only in favour of a person who has signed  the Covenant,  and in favour of his successor having, regard  to the  customs and laws governing the state if the Ruler  dies or  becomes incapable of functioning or his  recognition  is withdrawn.   By  the  use of the expression  "for  the  time being"  in cl. (22) Art. 366 the President is  not  invested with  an  authority to accord a temporary recognition  to  a Ruler nor with authority to recognise or not to recognise  a Ruler  arbitrarily;  the expression  predicates  that  there shall  be  a Ruler of the Indian State, that  if  the  first recognised  Ruler dies or ceases to be a Ruller a  successor shall  be appointed and that there shall not be more  rulers at  a given time.  By the express injunction in  Art.  53(1) the  executive power vested in the President is directed  to be   exercised   in  accordance   with   the   Constitution. Therefore,  the power is intended to be exercised in aid  of and  not to destroy constitutional institutions.  The  power is  plainly  coupled  with duty-a  duty.  to  maintain  con- stitutional institutions, the constitutional provisions, the constitutional  scheme  and  the  sanctity  of  the   solemn agreements  entered  into by the predecessor  of  the  Union Government, which are accepted, recognised and  incorporated in  the Constitution.  An order merely  "derecognising"  a Ruler without providing for continuation of the  institution of   Rulership,   which   is  an  integral   part   of   the Constitutional  scheme, is, therefore, plainly illegal.  [74 C; 81 H-82 D, E; 83 A] [The Court did not express any final opinion on the question whether  the expression "for the time being" in relation  to the  persons who had entered into covenants  or  agreements. and in relation to the successor, implies that the President has the power in appropriate cases and for adequate  reasons to withdraw recognition.  Also, the Court did not decide the question  whether in certain exceptional  circumstances  the President may in granting recognition to a successor  depart in  the larger interest of the country from the strict  rule of custom governing succession to the, gaddi. [74 B-C; 82 G- H] 14 (ii) The President is not invested with any political power, transcending  the Constitution which he may exercise to  the prejudice  of citizens.  The Constitutional mechanism  in  a democratic  polity  does not contemplate  existence  of  any function  which  may  qua  the  citizens  be  designated  as political.  The history of negotiations which culminated  in the  integration of the territories of the  Princely  States before the commencement of    the    Constitution    clearly indicates that the recognition of the status of   the Rulers and their rights was not temporary and also not liable to be varied or repudiated in accordance with "State policy".  Nor does  the  Constitution invest the executive branch  of  the Union  with the power to abolish the concept  of  Rulership, Privy  Purse and the privileges on the plea that these  have become  incompatible with "democracy, equality  ,and  social justice".   The  power  of the President  to  determine  the status   of   the  Rulers  by  cancelling   or   withdrawing

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recognition  to effectuate the policy of the  Government  to abolish  the concept of Rulership is therefore liable to  be challenged in these petitions. [75 D; 76 B] Rai  Sahib Ram Jawaya Kapur and Others v. State  of  Punjab, [1955] 2 S.C.R. 225 and Jayantilal Amritlal Shodhan v. F. N. Rana. [1964] 5 S.C.R. 294, referred to. Nawab  Usman Ali Khan v. Sagarmal, [1965] 3 S.C.R.  201  and Kunvar Shri Vir Rajendra Singh v. Union of India and Others. [1970] 2 S.C.R. 631 distinguished. (iii)     An  action  not  authorised  by  law  against  the citizens of the Union cannot be supported under the  shelter of  paramountly.  After the withdrawal of British power  and the  extinction of paramountcy of the British  the  Dominion Government  of  India. did not and could  not  exercise  any paramountcy over the States.  The functions of the President of India stem from the Constitution, not from a "concept  of the  British  Crown" identified or unidentified.   What  the Constitution does not authorise, the President cannot grant. Rulership  is therefore not a privilege which the  President may in the exercise of his discretion bestow or withhold.[94 C-D] (iv) Clause  (a) of article 291 which enacts that the  Privy Purse  "shall  be  charged  on  and  be  paid  out  of   the Consolidated  Fund of India" clearly raise an obligation  to pay  the  Privy Purse.  A charge gives a  right  to  receive payment  out of a specified fund or property  in  preference over  others.   In the absence of clear indications  to  the contrary  it would be difficult to hold that the  expression "charge" used in the context of the financial matters of the state  has a different meaning.  The Constitution  does  not recognise  any  sequence of priorities.  But that  does  not alter  the  fundamental  character  of  a  charge  that   it specifies   a  fund  out  of  which  satisfaction   of   the expenditure  charged  must be made and that  the  prescribed expenditure shall have priority in payment to the person for whose  benefit the expenditure is charged on the Fund.   The Constitutional  obligation to proceed in the manner set  out in  Arts. 112, 113 & 114 imposed upon the President and  the Parliament,  implies,  a right in the person or  persons  in respect  of  whom the expenditure is to be  incurred.   That view  is supported by other provisions in the  Constitution. Clauses  (a)  & (b) of Art. 291 must be read  with  articles 112,  113 and 114; they are parts of a single scheme.   They contemplate  that the Privy Purse shall be included  in  the financial  statement as charged upon the Consolidated  Fund; it  shall be beyond the voting power of the Parliament;  its destination  shall not be altered: it shall be paid  to  the Ruler after the Appropriation Bill is passed, and 15 when  paid it shall be free from liability to pay  taxes  on income.   This  is an integrated process,  which  cannot  be interrupted    without   dislocating   the    constitutional mechanism. [87 A; 88 B; 88 E & 89 D] Govind  Chandra Pal v.  Dwarka Nath Pal, I.L.R. 35 Cal.  837 and Raja Sri Shiva Prasad v. Beni Madhab, I.L.R. I Pat. 387, referred to. (v)  Article 291 does not merely incorporate recognition  of the  obligation to pay privy purse under covenants  incurred by the Government of the Dominion of India; it gives rise to a  liability dehors the covenants.  After the  Constitution, the  obligation to pay privy purse rested upon the Union  of India  not  because it was inherited from  the  Dominion  of India  but because of the constitutional mandate under  Art. 291.  The source of the obligation is in Art. 291 and not in the  covenants and agreements.  Reference to  the  covenants

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and  agreements  in the article is for  defining  the  privy purse.   The  obligation  which  arose  out  of  the  merger agreement and was on that account an act of state stied  its original  character on acceptance by the Constitution.   The Union of India cannot plead act of state as defence  against claim by the Rulers to Privy Purse. [89 F; 90 B-D] Doss v. Secretary of State for India in Council, [187]  L.R. 19 Eq. 509, Saleman v. Secretary  of State for India, [1906] I  K.B. 613 and Union of India & Ors. v. Gwalior Rayon  Silk Manufacturing  (Weaving) Co.  Ltd. & Anr., [1964]  I  S.C.R. 892, held inapplicable. (vi) An  obligation  which arises out  of  a  constitutional provision   to  pay  to  the  citizens  sums  of  money   in recognition of obligations of the predecessor Government may scarcely be called imperfect.  A perfect obligation pertains to the domain of law and justice and imperfect obligation to the domain of benevolence. [89 E] (vii)     The  courts have jurisdiction to interpret and  to determine  the true meaning of articles 366(22), 291,  36  2 and  363  and the bar to the jurisdiction of the  courts  by article  363  is a limited bar.  Article  363  excludes  the jurisdiction  of  the courts only in respect of  the  matter specified  therein.  A provision which purports to.  exclude the  jurisdiction  of the courts in certain matters  and  to deprive  the  aggrieved party of the normal remedy  will  be strictly  construed,  for,  it  is a  principle  not  to  be whittled  down that an aggrieved party will not, unless  the jurisdiction  of  the  Courts  is  by  clear  enactment   or necessary  implication  bar-red, be denied recourse  to  the courts  for determination of his rights.  It is  within  the province  of the Court alone to determine what  the  dispute brought   before  it  is,  and  to  determine  whether   the jurisdiction of the Court is, because it falls within one of the  two  limbs of article 363, excluded qua  that  dispute. Jurisdiction  to try a proceeding is barred under the  first limb  of  article  363 if the dispute "arises"  out  of  the provision of a covenant; it is barred under the second  limb of  the article if the court holds that the dispute is  with respect  to  a  right  arising out of  a  provision  of  the Constitution  relating  to a covenant.  A  dispute  that  an order of an executive body is unauthorised, or a legislative measure  is  ultra  vires, is not one  arising  out  of  any covenant under the first limb of article 363, merely because the  order or the measure violates the right of the  citizen which,  but  for the act or measure, were not  in  question. The  dispute in such a case relates to the validity  of  the Act or the vires of the measures.  Exclusion of the  Court’s jurisdiction  by  the  terms of the relevant  words  in  the second  limb  of  Art.  363 lies in  a  narrow  field.   The expression "provisions of this Constitution relating 16 to"  means  provisions  having  a  dominant  and   immediate connection with; it does not mean merely having a  reference to.  If the constitutional provision relating to a  covenant is  the source of the right claimed to accrue, or  liability claimed  to  arise, then clearly under the second  limb  the jurisdiction  of  the  court to  entertain  a  dispute  with respect to the right or obligation is barred [94 H-95 D;  96 B-E, 99 F] (viii)    It  cannot be urged that the jurisdiction  of  the courts to enforce rights and obligations arising out of  the covenants  was excluded because the rights  and  obligations arose  out of acts of State and by constitutional  provision that   exclusion  was  affirmed  and  extended   after   the Constitution.  There can be no act of State against its  own

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citizens   by  the  State.   The  Rulers  who  were   before integration   of  their  States  aliens  qua  the   Dominion Government are now citizens.  Their rights and  obligations which  arose  from an act of State are  now  recognised  and accepted  by the Union of India.  An act of  state  vanishes when  the  new sovereign recognises either expressly  or  by implication  the rights flowing therefrom.   Enforcement  of those  rights and obligations is governed by  the  municipal laws, and unless the jurisdiction of the Courts is  excluded in  respect of any dispute, the courts will be competent  to grant relief. [93 A-C] State  of Gujarat v. Vora Fidalli  Badruddin  Mithibharwala, [1964] 6 S.C.R 461, referred to. (ix) Article 366(22) is a provision relating to  recognition of  Rulers and that is the direct and only purpose  of  the provision.  It is not a provision relating to a covenant and the reference to the covenant or the agreement of the nature mentioned in article 291 is only for determining who may  be recognised  as  a  Ruler.  The  limited  exclusion  of  the, jurisdiction of courts in article 363 does not operate  upon the claim for a privy purse relying upon article 291. [97 C- E; 98 E] Nawab  Usman Ali Khan v. Sagarmal, [1965] 3 S.C.R,  201  and Kunvar Shri Vir Rajendra Singh v. Union of India and Others, [1970]S.C.R. 631 distinguished and explained. [The observations in Nawab Usman Ali Khan that the essential political  character  of the guarantee for  the  payment  of privy  purse  preserved by article 363, and  the  obligation cannot  be enforced in any municipal court held  unnecessary for   the  purpose  "of  the  decision  in  that  case   and incorrect.][98 D-E] (x)  Reference  to  the  covenant  in  article  291   merely identifies the sum payable as privy purse; it does not  make the  article  a  provision relating to  the  covenant.   The source  of  the  right to receive the  privy  purse  is  the constitutional  mandate; it is not the covenant.  A  dispute as  to the right to ,receive the privy, purse is  therefore not  a dispute arising out of the covenant within the  first limb of article 363 nor is  a dispute with regard to a right accruing  or obligation arising out of the provisions  of  a constitution relating to a covenant. [99 B-C] (xi) Article   362  is  plainly  a  provision  relating   to covenants  within  the meaning of article 363.  A  claim  to enforce  the  rights,  privileged and  dignities  under  the covenants  will  therefore be barred by the  first  limb  of article 363 and a claim to enforce the recognition of  right and  privileges  recognised by article 362  will  be  barred under  the second limb of article 363.  Jurisdiction of  the courts will however not by excluded where the relief claimed is  founded on a statutory provision enacted to give  effect to personal rights under article 362 [99 D] 17 (xii)     Therefore,  the  Court  will give  effect  to  the constitutional  mandate in art. 363 only if  satisfied  that the dispute arises out of any provision of a covenant  which is  in  force and was entered into or  executed  before  the commencement   of  the  Constitution  and  to   which   "the predecessor of the Government of India was a party, or  that it  is  in  respect of rights,  liabilities  or  obligations accruing or arising under any provision of the  Constitution in relation to a covenant; but since he right to privy purse arises  under  article 291 the dispute in respect  of  which does  not  fall in either clause, the  jurisdiction  of  the court is not excluded.  Again, the jurisdiction of the Court is not excluded in respect of disputes relating to  personal

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rights and privileges which are granted by statutes. [99  F- H] (xiii)    Since  the  order  of  the  President  is  without authority  of  law  there is a  clear  infringement  of  the guarantee  of  the fundamental rights under  articles  19(1) (f), 21 and 31 (1) of the Constitution. [72 H] The  Court did not express any opinion (1) on  the  question whether  a  dispute  that an executive  act  or  legislative measure operating upon a right accruing or liability arising out of a provision is invalid, falls within the second  limb of article 363 and (ii) on the plea that the order was  made for a collateral purpose. On the view taken, the Court did not deal with the plea that Rulership  was  "property" and the Order  of  the  President deprived the petitioners of that property without  authority of law. [73 A] Per  Hedge,  J.  (1) The meaning  given  to  the  expression ‘Ruler’  in article 366(22) is only for the purpose  of  the Constitution  and  not  for any other  purpose.   Rulers  of Indian States disappeared as soon as their territories  were merged  with  India  and all  those  quondam  Rulers  became citizens  of  India.   Their rulership is  merely  a  status entitling  them  to  Privy  Purse  and  certain  privileges. Articles  291,  362  and  366(2)(a)  and  (b)  (before   Its deletion),  as  well as entry 34 of List I of  Schedule  VII referred  to Rulers and, therefore, it became  necessary  to define that expression. [160 E-G; 161 A] (ii) Article  366(22) imposes a constitutional duty  on  the President and for that purpose has conferred on him  certain powers.  The power is one coupled with duty.  The  President cannot  create  a  successor;  he  can  only  recognise  the successor.   Recognition means the power to  locate.   Hence the  power conferred on the President under the second  part of  article 366(22) is a very limited power.  The power  has to  be exercised in accordance with law; in other  words  it has  to  be  exercised  as  a  quasi-judicial  power.    The expression  "for the time being" in the second part  of  the article is relevant as the question of recognition of a  new ruler  arises  on the death of each Ruler.   The  expression contemplates  the  continuity of Rulership so  long  as  the Ruler who entered into covenant or agreement or a  successor of his is in existence. [164 G, B-C] (iii)     The power to recognise the Rulers does not include the  power  not  to  recognise.   The  President  cannot  do indirectly  what the legislature cannot do directly.   Ruler as referred to in some of the provisions of the Constitution is an entity created by the Constitution to further  certain purposes recognised by the Constitution.  That entity cannot be abolished either by the executive or by the  legislature. Therefore,  it  is  not possible to spell  out  a  power  to abolish the Rulership under Article 366(22). [165 G, H] 18 [His Lordships did not go into the question whether a  Ruler once recognised can be derecognised by the President and, if so, under what circumstances.] (iv) The  power  of  recognition of  the  Rulers  cannot  be claimed  to  be a facet of the  paramountcy  enjoyed  by_the British  Crown.  Paramountcy is the very antithesis of  rule of law and the government of India cannot consider itself  a superior,  power  in its relationship with the  citizens  of this country.  Nature and scope of the power exercisable  by the President under a provision of the Constitution must  be spelled out from the language of the provision and from  the purpose intended to be served by the provision. [166 E-G] (v)  The  plea of State policy is irrelevant in the  context

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of  this case.  If the Constitution has laid down a  policy, that   policy  cannot  be  departed  from  either   by   the legislature  or by the executive.  Neither  the  legislature nor  the executive, can have a policy which runs counter  to the policy laid down by the Constitution. [159 E] (vi)The  stand taken by the Union of India that the  concept of  Rulership, Privy Purse and the privileges guaranteed  to the  Rulers have become incompatible with "democracy  equity and  social justice" raise political issues.  This Court  is not  the  forum for going into political issues, nor  is  it concerned  with  political passions surrounding  the  issues arising for decision in this case. [159 B] (vii)     Hidayatullah, C.J. concurring).  There is  nothing like a political power under our Constitution in the  matter of relationship between the executive and the citizens.  The Constitution   recognises   only  three  power   viz:,   the legislative,  judicial and executive.  The executive  cannot exercise  any  sovereignty  over its  citizens.   The  legal sovereignty  vests with the Constitution and  the  political sovereignty with the people.  The President is a creature of the  Constitution;  he can only act in accordance  with  the Constitution. [D-F] Kunwar  Shri  Vir Rajendra Singh v. Union of  India  &  Ors, [1970] 2 S.C.R. 631. distinguished. (viii)    The  President  on the advice of the  Cabinet  has disregarded the mandate of arts. 53(1), 73(1), 291, 362  and 366(22).  That being so, his order must be held to be  ultra vires the Constitution; hence a nullity. [168 B] (ix)The  impugned  order is also  unconstitutional  for  the reason  that  the  power conferred  under  art.  366(22)  is exercised for a collateral purpose.  The circumstances under which the impugned order came to be made show that there was attempt  to do indirectly what the government could  not  do directly.  Such an exercise of power is impermissible  under article  366(22).   If  the  Constitution  or  any  of   its provisions  have  ceased to serve the needs of  the  people, ways must be found to change them but it is impermissible to bypass the Constitution or its provisions.  For that  reason also the impugned orders must be held to be ultra vires art. 366(22). [167 B] Balaji v. State of Mysore, [1963] Supp.    1. S.C.R. 439. (x)Article 363 has to be read harmoniously with articles 291 and 366(22).  For the purpose of giving necessary  direction to the Union and State executive as well as to the Union and State legislatures. 19 the   Constitution  recognised  the  rights   accruing   and liabilities and obligations arising under various agreements and   covenants   which  recognition   made   those   right, liabilities   and  obligations  enforceable.   But   without article 363 article 362 would have opened the flood gate  of litigation.   The Constituent Assembly evidently  wanted  to avoid  that situation.  That appears to have been  the  main reason for enacting article 363. [185 F-G & 186 A-C] Rajendra Singh’s case, State of Seraikella v. Union of India and  Anr.  etc., [1951] S.C.R. 474, Visweshwar  Rao  v.  The State  of Madhya Pradesh, [1962] S.C.R. 1020,  Sri  Sudhansu Shekhar  Singh Deo v. The State of Orissa, [1961]  I  S.C.R. 779,  H.H. The Maharana Sahib Shri Bhagwar Singh Bahadur  of Udaipur  v. State of Rajasthan & Ors. [1964] 5 S.C.R. I  and State  of  Gujarat v. Vora Fiddali  Badraddin  Mithibarwala, [1964] 6 S.C.R. 461, held inapplicable. Nawab  Usmanali  Khan  v. Sagarmal,  [1965]  3  S.C.R.  201, distinguished. Nawab  Bahadur  of Murshidabad v.  Karnani  Industrial  Bank

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Ltd., 58 I.A. 215, referred to. (xi)Article 363 excludes the jurisdiction of courts only  in respect of matters coming under article 362.  The contention that  article  363  excludes also  the  right  arising  from article  291  because  article 291  also  protects  personal rights  falling  within  the scope of article  362,  has  no force.   Privy Purse was taken out for special treatment  by the  Constitution  under  article 291 and  therefore  it  is excluded   from  the  general  provision  in  article   362. Further,   there was no purpose in guaranteeing the  payment ofPrivy Purse under article 291 and then taking away  the right to recoverthem under article 363.  In the case  of most of the Rulers the right toreceive  Privy Purse  was an  enforceable  right  even before article  291  came  into force.   It is not easy to accept the contention  that  what was  an  enforceable  right was made  unenforceable  by  the Constitution. [184 H-185 D] (xii)The  liability  undertaken under article 291 is  a  new liability  and not an affirmation of an  existing  liability arising under the covenants and agreements.  The article  is in  no  way  linked  with  covenants  and  agreements.   The covenants  and  agreements only continue as evidence  as  to matters  mentioned in the first part of article 291.   After article  291 came into force there is no legal  relationship between the covenants and agreements and that article.   The article  read with Art. 366(22) constitute a sell  contained code  in  the matter of payment of Privy  Purses  and  those articles operate on their own force. [177 D, E] (xiii)It  is not possible to accept the contention that  the expression "charged on...... the Consolidated Fund of India" in  article  291 merely means that the  amounts  payable  as Privy Purse are not notable and that the expression  neither creates a right in favour of the person in whose benefit the charge  is created nor is the Consolidated Fund pledged  for the  payment of the Privy Purse.  If an item of  expenditure charged  on  the  Consolidated Fund merely  means  that  the expenditure is non-votable then there was no need to provide in  article 113 that "so much of the estimate as relates  to expenditure  charged  upon the Consolidated  Fund  of  India shall  not  be submitted to the vote of  Parliament".   That part of article 113 was evidently enacted to make  effective the  statutory  lien over the Consolidated Fund  created  in favour of the person to, 20 whom  the  payment had to be made.  It emphasises  the  fact that  the pledge created in favour of the person  for  whose benefit the charge is created by the Constitution, cannot be taken away even by the Parliament.  No sooner the  President recognises the Ruler of an Indian State, he becomes entitled to  the  Privy Purse guaranteed under article 291  from  the date the Constitution came into force.  Every constitutional sanction for payment is necessarily a mandate to pay if that sanction relates to the discharge of an obligation; it is an enforceable mandate. Besidesthe executive cannot take  the stand that it will not respect a mandate of the Constitution unless  that  mandate  is enforceable in  a  court  of  law. Whether  a particular constitutional mandate is  enforceable or not, itis all the same binding on all the organs  of the State. [177 E-H;182 C-D] (xiv)A  dispute  whether  the President  has  the  power  to abolish  all  Rulers  under article  366(22)  quite  plainly cannot  be  held to be a dispute in respect  of  "any  right accruing under or any liability or obligation arising out of any  of the provisions of the Constitution relating  to  any such treaty, agreement, covenant........ within the  meaning

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at  the second part of article 363.  What is in  dispute  is the  true scope of the power of the President under  article 366(22).   Power  is  an authority whereas a  right  in  the context  in  which  it  is used  in  article  363  signifies property.   A  dispute as regards the  interpretation  of  a provision  of the Constitution is not a dispute  within  the contemplation of the second limb of article 363 as it is not a dispute in ’respect of any right, liability or obligation. The  word "relating to" is a word of wide import but in  the context  in which it is used in article 363, it must have  a narrower, meaning.  The word means "to bring into relation", or  "establish  relation  between".   In  other  words,  the provision  of  the Constitution in question must  be  linked with  the  merged  agreements  or  covenants  directly   and immediately.    It  must  have  no  independent   existence. Article 366(22) is an independent provision.  It has nothing to do with the agreements and covenants. [186 G-187 G] (xv)Article  362 clearly links itself with  the  agreements and covenants and it has no independent existence apart from the agreements and covenants; [182 G] [His Lordship did not find it necessary to go into the scope of article 362.] (xvi)The  petitioners  have established  that  their  rights under  articles 31 and 19(1)(f) have been contravened.   The right to receive the Privy Purse under article 291, being  a legal  right, is a right enforceable through the  courts  of law.   That  right is undoubtedly property.  The  denial  of those  benefits  which had been afforded  the  Rulers  under statutes  is  again  a  contravention  of  the  petitioners’ fundamental right to property. [194 E, G] State  of M.P. v. Ranojirao Shinde and Anr. [1968] 3  S.C.R. 489 and Madhaorao Phalke v. State of Madhya Bharat. [1961] I S.C.R. 957, referred to: (Per  Mitter.  J. dissenting).  The Order of  the  President though unjustified, is not liable to be challenged, because, article  363  is  a  bar  to  the  maintainability  of   the petitions. [152 G-H] (1)Article 366(22) implies not merely a right or power but a  duty or obligation to recognise a person as a Ruler  both at the commencement of the Constitution and even  afterwards so long as the line of 21 Rulers  lasted  and  the choice of a person as  a  Ruler  to succeed  another has to be made applying the law and  custom attaching  to  the gaddi of a particular  state.   Unless  a Ruler can be identified for the purpose of the  Constitution articles  291, 362 and 363 cannot be applied.   Clause  (22) fixes  the  identity of the Ruler for the  purposes  of  the Constitution as a prince, chief or other person by whom  any covenant  or  agreement as is referred to in clause  (1)  of article  291  was  entered.  into.  The  power  or  duty  to withdraw  recognition  must be confined to  cases  when  the first recognition was not proper. Maharaja  Pravir Chandra Bhanj Deo Kakatiya v. The State  of Madhya Pradesh, [1961] 2 S.C.R. 501 held inapplicable. (ii)The  power of recognition is- not a political power  in the  paramountcy  field.  In strict  legal  theory  whatever paramountcy  there  was before the 15th August 1947  in  the British  Government  lapsed with the passing of  the  Indian Independence  Act.  Paramountcy de facto  there  undoubtedly was   but  no  legal  sanction  can  be  ascribed  to   such paramountcy. Virendra  Singh & Others v. State of U.P., [1951] 1,  S.C.R. 415, Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income- tax, [1959] S.C.R. 729, Secretary of State v. Komachee Boyee

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Shiba,  7  M.I.A. 476, Doss v. Secretary of  State  L.R.  19 Equity  509 and Solomon v. Secretary of the State, [1906]  I K.B. 613, distinguished. (iii)     Once  the  Rulers  ceded  their  territories   and accepted the Constitution ofIndia they became citizens  of India and the plea of continuance of an actof   state   as against them cannot be accepted. (iv) The  recognition  of Rulership is not  an  exercise  of political power vested in the President: Kunwar  Shri Vir Rajendra Singh v. Union of India, [1970]  2 S.C.R. 63 1, explained. (v)Article  291 is meant to put the guarantee as to  payment of Privy Purse contained in the Covenants and agreements  on a  firm and sure footing.  It is not a mere  declaration  of pious  intention which the executive could disregard at  its whim  or  pleasure;  so  long as it finds  a  place  in  the Constitution it is to be acted upon. (vi)Article 363 imposes an absolute bar on the  jurisdiction of  all  courts to adjudicate upon disputes covered  by  it. The object of the article was as much to save the Rulers who had  entered  into covenants or agreements etc.  from  their rivals or kinsmen coming to court to upset the covenants  or agreements  as  to  shield  the  Government  of  India  from attempts  on the part of Rulers to rip open  the  covenants. To  see whether any dispute falls within the second limb  of the article one must examine the content of the right or the limit  of  the liability or obligation arising  out  of  any constitutional  provision which. provision in its turn  must relate to any treaty, agreement etc.  The expression  relate to"  means,  inter alia, "stand in some  relation,  to  have bearing  or  concern, to pertain, to refer  to,  bring  into association with or connection with". [127 E-H] 22 State of Seraikella & Others v. Union of India and  Another. [1951]  S.C.R. 174, Sudhansu Shekhar Singh Deo v. The  State of  Orissa,  [1961]  I  S.C.R. 779,  Nawab  Usmali  Khan  v. Sagarmal,  [1965]  3 S.C.R., 201, Bishambar  Nath  v.  Nawab lmdad Ali Khan, 17 I.A. 181, Nawab Bahadur of Mushidabad  v. Karnani Industrial Bank Ltd., 58 I.A. 215, referred to. (vii)Article 291 is a provision of the Constitution relating to  covenants or merger agreements.  It is not  a  provision merely  for finding out the amount of the liability  of  the Dominion  of  India by way of privy purse to  a  Ruler.   It expressly refers to covenants or agreements entered into  by the Rulers under which payment of sums free of tax has  been guaranteed  or assured by the government of the Dominion  of India as Privy Purse and gives the term as to Privy Purse  a new  shape and form.  The article seeks to instill life  and vigour  into  the  term for payment of Privy  Purse  in  the covenant  by  creating  a new channel  leading  out  of  the guarantee  of the government of the Dominion of India  which was  no  longer  in existence and making  it  flow  along  a constitutional course by putting the liability of the  Union of  India  for payment of the sums beyond  controversy.   So considered  any dispute as to payment of privy  purse  would come under the bar of article 363. [136 G; 140 D; 14t D; 142 D; 143 C] Kunwar  Shri Vir Rajendra Singh v. Union of India, [1970]  2 S.C.R. 631, referred to. (viii)  Since  the  President’s power or right  or  duty  or obligation  to  recognise  a person as a  Ruler  arises  not merely out of the provisions in article 366(22) but also the covenants, merger agreements or instruments of accession the dispute  is  one  which  arises  out  a  provision  of   the Constitution relating to a treaty, agreement, covenant  etc.

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in terms of article 363. [151 D-E] (ix)It  cannot  be urged that if the act  complained  of  is ultra  vires  or a nullity the jurisdiction  of  the  courts would not be excluded. constitutional provision of the  kind of  article 363 transcends this kind of consideration.   All that  the  Court  has to see is whether  the  dispute  falls within  either  limb of the article.  If the dispute  is  so covered  the court is precluded from examining  whether  the contention of the party asserting a right was genuine or  of real  substance.  Equally, the bar will apply where a  party denying  the  right  asserted or contesting  the  claim  put forward  is  guilty of action which on the  face  of  things appears  to be arbitrary if there be some scope for  raising the plea in denial or contradiction. [151 C] Pratap Singh v. The State of Punjab, [1964] 4 S.C.R. 773 and Makhan  Singh  v.  State of Punjab,  [1964]  4  S.C.R.  797, explained. R.M.  Lohia v. State, [1966] I S.C.R. 709, Ram Swarup  v. Shikar  Chtind,  [1966] 2 S.C.R. 553, Sadanandan  v.  Kerala [1966]  3  S.C.R. 590, Jaichand Lal v. West  Bengal,  [1966] Suppl.   S.C.R.  464,  Raja Anand v. U.P.  Stale,  [1967]  I S.C.R.  373,  Dhulabhai v. Madhya Pradesh,_[1968]  3  S.C.R. 662, The General Assembly of Free Church of Scotland v. Lord Over  Town, [1904] A.C. 515, R. v. Bryant, [1956]  I  A.E.R. 341, Anismiminic Ltd. v. Foreign Compensation Commission and another,  [1969] I A.E.R. 208, Secretary of State v. Mask  & Co.,  67  I.A.  222, Wolverhampton  New  Waterworks  Co.  v. Hawkesford,  [1859]  6 C.B. (N.S.) 336.  Neville  v.  London "Express" Newspaper, [1919] A.C. 368, Circo’s Coffee Co.  v. State  of  Mysore,  19 S.T.C. 66  and  C.  T.  Santhulnathan Chettiar v. Madras, C.A. 1045 of 1966 decided on 20th  July, 1967, referred to. 23 Raleigh Investment Co. Ltd. v. Governor-General in  Council, 74 I.A. 50, disapproved. (x)Notwithstanding  the  wide  sweep of  the  provision  for ousting  the  jurisdiction  of courts  as  regards  disputes covered  by  it,  article 363 gave  ,express  power  to  the President to have the opinion of this Court to guide himself by,  and  when  disputes  of  such  public  importance  were agitating  the  minds of members of Parliament  and  of  the Cabinet  it was not only his right but his duty  to  consult this Court. [152 A] Per  Ray, J. (dissenting), that the petitions fail  and  are dismissed. (1) Articie 363 embodies the principles of Acts of  state. The  entire relationship of the Dominion of India  vis-a-vis the Indian states was in the domain of Act of State and  the instruments,  merger agreements and covenants did  not  have any constitutional sanction and obligation and were  totally unenforceable  in  municipal  courts.   This  Court  has  in several decisions so held.  Article 363 and the other allied articles really reflect what the makers of the  Constitution picked  up  from  the historical past and  inserted  in  the Constitution. [206 G, 207 H] State of Seraikella v. Union of  India & Anr. [1951]  S.C.R. 474,  Virendra  Singh & Ors. v. The State of  Uttar  Pradesh [1955] I S.C.R. 415, M/s.  Dalmia Dadri Cement Co. Ltd.   V. The Commissioner of Income-tax, [1959] S.C.R. 729, The State of  Saurashtra  v. Memon Haji Ismail Haji, [1960]  I  S.C.R. 537,   State-   of  Gujarat  v.   Vora   Fiddali   Badruddin Mithibarwala,  [1964] 6 S.C .R. 416 and Nawab Usmanali  Khan v. Sagarmal, [1965] 3 S.C.R. 201, referred to. (ii)The  power  of recognition of Rulership  is  political, because,  it  is exercised by the President in  relation  to

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prince or chief by whom any covenant or merger agreement was entered into and the necessity for recognition arises  from the  covenants and merger agreements.  It is political  also because  it is not limited only to the law of succession  or custom.   The reasons of state policy will enter the  field. it  is  not a compulsive power.   The  considerations  which moves the President are matters on which the Court will find no standard for resolving it judicially. [210 F] (iii)The rights accruing under or obligations arising out of the provisions of the Constitution relating to covenants  or merger agreements are imperfect rights.  There are no  legal rights  as  to recognition of rulership,  payment  of  Privy Purse and enjoyment of rights and privileges. [208 G] (iv)Recognition of a Ruler under article 366(22) is only for the limited purpose of payment of privy purse and it has  no other  reference.   There  cannot  be  any  legal  right  to recognition because, the Power of the president to recognise for  the  time being repels any concept of  legal  right  to Rulership  Since the obligation to recognise a Ruler  arises only  from the covenants and agreements and there cannot  be any  legal  enforceable  right  to  recognition  under   the covenant,  no  legal right to arises under  article  366(22) either.   This is political power ship‘ power  belonging  to the  State,  its  government  and policy  and  there  is  no judicial process to adjudicate upon such considerations.  It is sophistry to speak of Rulership as an institution.   When institutions    are   recognised   the   Constitution    has specifically  designated and recognied them.  The  President has  power  to derecognise.  The Constitution does  not  say that  the  President  is bound to  recognise  a  Ruler.   It follows therefore that after derecognition he is not equally bound  to recognise another person as Ruler. [213 H; 214  H; 214 C; 26 A] 24 Maharaja  Pravir Chandra Bhanj Deo Kaktiya v. The  State  of Madhya Pradesh, [1961] 2 S.C.R. 501, Umrao Singh Ajit  Singh Ji & Anr. v. Bhagwati Singh Balbir Singh & Ors., A.I.R. 1956 S.C.  15 and Kunwar Shri Vir Rajendra Singh v. The Union  of India & Ors., [1970] 2 S.C.R. 631, referred to. (v)  Article  363  is  a non obstante clause  and  it  is  a constitutional  mandate.   The non obstante clause  must  be allowed  to operate with full vigour in its own field.  [211 A; 212 A] N.P.   Ponnuswami   v.   Returning   Officer,    Namakkal Constituency  & Ors. [1952] S.C.R. 218, Aswini  Kumar  Ghosh and  Anr.  v.  Arabind Bose and Anr.  [1953]  S.C.R.  I  and Dominion  of  India and Anr. v. Shrinbai A.Irani,  [1955]  I S.C.R. 206, referred to. (vi)Article  363 is a positive rule of  unenforceability  of certain  rights and obligations.  This Court has  held  that the  article is a bar in any dispute relating  to  covenants and  merger agreements, that the privy purse is a  political pension   and  that  the  article  constitutes  a   bar   to interference  by  court in a dispute arising  by  reason  of recognition of Rulership. [209 H] State of Seraikella v. Union of India & Anr., [1951]  S.C.R. 474,   State   of   Gujarat  v.   Vora   Fiddali   Badruddin Mithibarwala,  [1964]  6  S.C.R.  416and  Kunwar  Shri   Vir Rajendra Singh v. The Union of India & Ors. [1970] 2  S.C.R. 631, referred to. (vii)The dispute as to jurisdiction of the President is not in vacuo but is adispute as to right of  recognition of Ruler for the purpose of paymentof  Privy Purse  and enjoyment of rights and privileges.  The disputeis whether the  President  has or has not the power to make  the  order

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impugned in these proceedings. [213 B] United  Provinces  v. Governor-General  in  Council,  [1949] F.C.R. 124 referred to. (viii)Article  366(22) relates to covenants  or  agreements. No  person  can  be recognised as a  Ruler  until  first  be entered  into  a  covenant referred to in  article  291,  or secondly, he is recognised by the President as the successor of the Ruler recognised under the first part of clause (22). Therefore,  the claim to be recognised as a Ruler  can  only arise if he or his predecessor signed the covenant and  thus there is express and direct relation to covenants.   Article 366(22) has been put in relation to article 291 and  article 362  and  one  cannot  abstract  article  366(22)  from  the collection  of  those articles.  All  these  three  articles viz., 291 362 and 366(22) stem from the covenants and merger agreements.  Ruler in article 366(22) is description of  the person  referred  to  in  article  291  and  362.   If the petitioner challenges the power of the President to derecog- nise  him  he claims that he has a right to  continue  as  a Ruler and this is a right related to covenants. [216 E-G, B- D] (ix) The proposition that if the order is a nullity there is no bar of jurisdiction, is inapplicable to the present  case where the question for consideration is of the  Constitution which under some articles confers jurisdiction on this Court and  in  another article excludes the  jurisdiction  of  the Court.  A private clause of this nature in the  Constitution stands  on  an entirely different footing from a  clause  of that   nature  in  other  statutes.   The  fallacy  of   the petitioners’  submission  that  because  the  order  of  the President is a nullity the petitioners’ property rights  are invaded  and  hence  the  jurisdiction  of  this  Court   is attracted,  is,  in totally overlooking  the  provisions  of article 363 which excludes in express and unambiguous  terms the   jurisdiction  of  this  Court  "notwithstanding"   any provision of the Constitution.  When the Constitution  which invests this 25 Court  with  jurisdiction  with  one  hand  divests  it   of jurisdiction with another in specifically designed  disputes the  attempt  to  overreach  the  article  which  bars   the jurisdiction of the Court will be totally impermeable.  [219 C, F-H] Smt.   Ujjam Rai v. State of Uttar Pradesh, [1963] I  S.C.R. 778, S. Pratap Singh v. The State of Punjab, [1964] 4 S.C.R. 733,  Makhan Singh v. State of Punjab, [1964] 4 S.C.R.  779, Lala  Ram Swarup & Ors. v. Shikar Chand and Anr.,  [1966]  2 S.C.R.   533,   Anisminic  Ltd.  v.   Foreign   Compensation Commission,  [1969]  2 A.C. 147, Dhulabhai and 0rs.  v.  The State   of   Madhya  Pradesh,  [1968]  3  S.C.R.   662   and Communications Assns. v. Douds, 339 U.S. 382, referred to. (x)Article  291, being a constitutional recognition  of  the guarantee  regarding Privy Purse mentioned in covenants  and agreements, does not create any new and independent right of payment of Privy Purse; therefore the article is related  to covenants.   It embodies the constitutional recognition  for the  fulfillment of the guarantees and assurances  given  by the  Government  of  India in respect of  Privy  Purses  and provides for necessary adjustments in respect of Privy Purse entailed  by changed circumstances and conditions.  A  Ruler of  an Indian State without being recognised a Ruler by  the President,  cannot  prefer any claim to  Privy  Purse  under article 291.  The Ruler of an Indian State mentioned in  the first Part of article 291 is different from Ruler  mentioned in  291(b).   The latter refers to the Ruler  defined  under

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article  366(22)  and recognised by the  President.   It  is because of the combined effect of articles 291, 366(22)  and 363 that this Court held in Nawab Usman Ali Khan’s case  the privy purse was paid on political consideration that it  was not  a right legally enforceable in any municipal court  and that  the political character was preserved by article  .363 by  taking  privy purse beyond the reach of courts  of  law. [221 B, B; 222 E-H] Nawab Usman Ali Khan v. Sagarmal, [1965] 3 S.C.R. 201 relied on. Communications  Assns.  v. Douds, 339 U.S. 382,  H.  H.  The Maharaja Sahib Shri Bhagwat Singh Bahadur of Udaipur v.  The State  of  Rajasthan  &  Ors. [1964] 5  S.C.R.  I  and  Shri Sudhansu Shekhar Singh Deo v. The State of Orissa and  Anr., [1961] I S.C.R. 779, referred to. (xi)Because  the payment of privy purses was to be  free  of all  taxes under the covenants and agreements whereas  under the  Constitution  it is exempt from all  taxes  on  income, article 291 cannot be said to create a new right.  The words "the  sums so paid" in cl. (b) of the article relate to  the sum guaranteed under the covenants and agreements and to the same sum charged on the Consolidated Fund.  One has to  turn to,  the  covenants  and merger agreement to  have  all  the particulars  of persons, sums guaranteed and  assured.   The fons  et  origo  is  the  guarantee  in  the  covenants  and agreements. [227 F] (xii) The words "charged on and paid out of the Consolidated Fund" in article 291 do not mean that a security is  created in   respect  of  privy  purse  and  therefore  a  new   and independent  right is created.  Under the article effect  is to  be  given to the covenants and merger  agreements  where payment of any sum has been guaranteed.  The charge is  only in respect of the right and obligation under the covenant an it is therefore neither a new nor an independent right. [223 D] (xiii)The  words  "charged  on  and  paid  out  of   the Consolidated Fund" mean that the sums shall not be submitted to  the  vote  of  Parliament and  article  113(1)  makes  a provision to that effect.  If it were a charge it 26 would be a debt which would be; assignable and there  cannot be  any legal validity for such assignment.  Charge  on  the Consolidated  Fund  is  an  .accounting  arrangement  before Parliament  and charge is meant for expenditure.  The  words "paid  out of the Consolidated Fund" denote the source  from which  the expenditure would be met.  The right  to  payment ,arises  de-hors  the charge on the Consolidated  Fund,  the right arises from recognition by article 291 of guarantee of payment of privy purses under a covenant. [224 D; 225 G-H] (xiv)  Therefore, article 362 is not the only article  which falls  within  article  363.   Article  363  uses  the  word provisions   of  the  Constitution.   The  word   provisions indicate  more  than one article.  It has to  be  emphasised that  article  291, 363 and 366(22) have a most  direct  and visible relation to article 363. [228 B-C] (xv)"Rights,  liabilities  and  obligations"  in   articles 294(b)  and  295(1)(b) of the Constitution  refer  to  other legal  rights  which  were enforceable in a  court  of  law. Privy purses under the covenants and merger agreements  were no  such legal rights enforceable in a court of law for  the obvious  reason  that  if  prior  to  the  Constitution  the covenants  and merger agreements were sought to be  enforced in a municipal court, the government would have demurred  on the  plea  of  Act  of State.  That plea  in  bar  would  be available  to  the Government of India as a defence  to  any

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claim under articles 294(b) and 295(1)(b).  Articles  294(b) and  295(1)(b)  deal with devolution of liabilities  of  the dominion  and part B States respectively.  The  Constitution has  dealt  with  privy purses  and  covenants  in  separate articles.  Therefore,_articles 294(b) and 295(1)(b)    can have no application to privy purses and privileges. [229  E- F] Union of India and Ors. v. Gwalior Rayon Silk  Manufacturing (Weaving)  Co.  Ltd. and Anr., [1964] 7 S.C.R. 892  and  The South India Corporation (P) Ltd. v. The Secretary, Board  of Revenue, Trivandram ,and Anr., [1964] 4 S.C.R. 280, referred to. (xvi)  In  sum,  the agreement to pay privy  purses  and  to continue privileges of the Princes which were guaranteed  by the  Government  of India before the Constitution  were  all political  agreements  born  out of  political  bargains  to achieve  integration of Indian States with the  Dominion  of India.    This  political  bargain  was  carried  into   the Constitution by the insertion of article 291 for payment  of privy  purse, article 362 for continuance of privileges  and article   366(22)  for  recognition  of  Princes,  and   the political  character was preserved by inserting article  363 which  bar  the  jurisdiction of the  court  in  respect  of disputes  arising out of covenants and agreements and  these articles which are related to the covenants and  agreements. [229 G] (xvii)  The petitioners cannot claim that the Order  affects their rights under the various statutes.  If the rights  are derived from recognition of rulership by the President under article 366(22) and if the recognition ,cannot be  impeached no right arises. [230 E] (xviii) Recognition of rulership is not a legal right nor is it  a right to property.  Privy purses is not a legal  right to  property  and  there is no fundamental  right  to  privy purses.   There is no fundamental right to  rulership.   The decisions of this Court which have held that article 363  is a  bar  to  rights  to  privy  purse,  personal  rights  and privileges and recognition of rulership from being  agitated in  courts, have spoken the words of the Constitution.  [231 C] 27

JUDGMENT: ORIGINAL  JURISDICTION : Writ Petitions Nos. 376 to  383  of 1970. Petitions under Art. 32 of the Constitution of India for the enforcement of fundamental rights. N.A.  Palkhivala,  M. C. Setalvad, B. G.  Murdeshwar,  R. Gopalakrishnan, J. B. Dadachanji, Ravinder Narain and 0.  C. Mathur, for the petitioners (in W.P. No, 376 of 1970). M  C.  Setalvad, B.G. Murdeshwar, R. Gopalakrishnan,  J.  B. Dadachanji,   Ravinder  Narain,  O.C.  Mathur   and   Suroja Gopalakrishnan  for  the  petitioners (in W.P.  No.  377  of 1970). M.C.  Chagla,  B.  G. Murdeshwar, J.  B.  Dadachanji,  R. Gopalakrishnan   and   Suroja   Gopalakrishnan,   for    the petitioners (in W.P. No. 378 of 1970). M.K. Nambyar.  B G. Murdeshwar.  J. B. Dadachanji and  R. Gopalakrishnan,  for  the petitioners (in W.P.  No.  379  of 1970). N.   A. Palkhivala, M. C. Setalvad, B. C. Murdeshwar, J.  B. Dadachanji R.  Gopalakrishnan  and R. N. Banerjee,  for  the petitioners (in W.P. No. 380 of 1970).

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M.C. Setalvad, B. G. Murdeshwar.  J. B. Dadachanji and R. Gopalakrishnan,  for  the petitioners (in W.P.  No.  381  of 1970). M.C. Setalvad, B. G. Murdeshwar.  J. B. Dadachanji and R. Gopalakrishnan,  for  the  petitioner (in W.P.  No.  382  of 1970). M.K.  Nambyar,  B. G. Murdeshwar, J.  B.  Dadachanji,  R. Gopalakrishnan  Shelandra  Swarup  and  B.  Dutta,  for  the petitioner (in W.P. No. 383 of 1970). Niren  De,  Attorney-General,  Jagadish  Swarup,  Solicitor- General,  S. T. Desai, Amiva K. Basu N. H. Hinoorani, R.  H. Dhebar, S. P. Nayar, for the respondents (in W.P. No. 376 of 1970). Niren  De,  Attorney-General  Jagadish  Swarup,   Solicitor- General  H. R. Gokhale, R. H. Dhebar, S. K. Dholakia and  S. P. Nayar, for the respondents (in W.P. No. 377 of 1970). Niren  De,  Attorney-General,  Jagadish  Swarup,  Solicitor- General, V. A. Sevid Muhammad R.H.Debar and S. P. Nayar, for the respondents (in W.P. No. 378 of 1970). Niren  De,  Attorney-General,  Jagadish  Swarup,  Solicitor- General  R. H. Dhebar and S. P. Nayar, for  respondents  (in W.P. No. 379 of 1970).  Niren  De.  Attorney-General, Jagadish  Swarup,  Solicitor- General  R. H. Dhebar S P Nayar and S. Chakravarti, for  the respondents (in W.P. No. 380 of 1970). Niren  De.   Attorney-General, Jagdish  Swarup.   Solicitor- General, R. R.Dhebar and S. P. Nayar, far the respondent (in W.P. No. 381 of 1970). Jagadish  Swarup, Solicitor General.  Rameshwar Nath and  S. P. Nayar, for the respondent (in W. P. No. 382 of 1970). S.Mohan Kumaramangalam, Ram Murthi.  Ram Panjuwani and S. P. Nayar, for the respondents (in W.P. No. 383 of 1970). 3- 744Sup CI/71 28 R.M.  Hazarnavis, R. N. Sachthey and Vineet Kumar,  for  the Advocate-General, Maharashtra. M.M.  Abdul Khadar, Advocate-General of Kerala and K.  M. K. Nail-, for the Advocate-General for the State of Kerala. Lal Narayan Sinha Advocate-General, for the State of  Bihar, D. P. Singh, R. K. Garg and S. C. Agarwala, for the Advocate for the State of Bihar. B.  Das, Advocate-General, for the State of West Bengal,  S. S. Ray, G.S.  Chatterjee  and  Sukumar  Basu,  for  the Advocate-General for the State of West Bengal. Ashok  Das,  Advocate-General,  for  the  State  of  Orissa, Santosh  Chatterjee and G. S. Chatterjee, for the  Advocate- General for the State of Orissa. G.   S.   Kasliwal,  Advocate-General  for  the   State   of Rajasthan and K.    Baldev  Mehta, for the  Advocate-General for State of Rajasthan. H.L.  Sijabal,  the  Advocate-General for  the  State  of Punjab and R. N. Sachthey, for the Advocate-General for  the State of Punjab. A.C. Gulati, Rajinder Jain, D. P. Ghosh and G.  Banerjee, for the intervener (in W.P. No. 376 of 1970) HIDAYATULLAH, C.J. delivered a separate concurring Judgment. The Judgment of SHAH, SIKRI, SHELAT, BHARGAVA, VAIDIALINGAM, GROVER  and  DUA, JJ. was delivered by SHAH,  J.  HEGDE,  J. delivered  a separate concurring judgment.  MITTER and  RAY, JJ. gave dissenting Opinions. Hidayatullah,  C.J--On September 6, 1970, the  President  of India  passed  a  laconic order in respect of  each  of  the Rulers  of former Indian States.  The order was served by  a Secretary to Government of India.  A sample order issued  to the Ruler of Gwalior State may be read here :

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                  No. 21/14/70-Poll.III                    Government of India                   Ministry of Home Affairs                New Delhi the 6th September 1970                            ORDER In exercise of the power vested in him under Article 366(22) of the Constitution, the President hereby directs that  with effect   from   the  date  of  this   Order   His   Highness Maharajdhiraja  Madhav  Rao Jiwaji Rao  Scindia  Bahadur  do cease to be recognised as the Ruler of Gwalior.              By order and in the name of the President.                                               Sd./-                                           L. P. SINGH                       Secretary to the Government of India 29 All  these orders were notified together in the  Gazette  of India of September 19, 1970, Part II.  They resulted in  the forthwith  stoppage  of  the Privy Purses  received  by  the Rulers and the discontinuance of their personal privileges. These  writ petitions under Article 32 of  the  Constitution were  filed by some of the Rulers as test cases to  question the  orders.   They  ask for a  writ,  direction  or  order, declaring  the  Presidential Order to  be  unconstitutional, mala  fide,  ultra vires and void, and for  quashing  it,  a writ,   direction  or  order  declaring  that  the   several petitioners continue to be Rulers and thus to be entitled to their  respective  Privy  Purses  and  personal  rights  and privileges and a further writ, direction or order  directing the  Union of India to continue to ’pay the Privy Purses  as before  and to recognise the personal rights  to  privileges and  to observe the, provisions of the Covenants and  Merger Agreements. This  judgment  and order will govern all  these  petitions. Since  the issues involved in all the petitions  are  common and there are only minor differences in the steps before the States merged with the Indian Union, it is sufficient if  an illustrative  petition  is dealt with.  In this  judgment  I shall  refer to the petition filed by the Ruler  of  Gwalior which  is  first  on my list and  embraces  almost  all  the varying  aspects of the question.  The other  petitions  are identical  except  for some details which are special  to  a particular Ruler but are not material for the discussion  of the issues involved. The Ruler of the Gwalior State succeeded to the gaddi of the State  on  July 16, 1961 on the demise of  his  father.   On August  15,  1947  the father had signed  an  Instrument  of Accession  of  his state to the Dominion of India,  as  then established, and it was accepted by the Governor-General  of India  on the following day.  This Instrument  of  Accession was  similar  to  those which the  other  Rulers  signed  on diverse  dates.   It is to be found at p. 165 of  the  White Paper on Indian States and is exhibited with the Petition as Ex.   A.  On April 22, 1948 the father, as Ruler,  signed  a Covenant  with  other  Rulers of this area  and  the  United States of Madhya Bharat was formed on June 15, 1948.  On the coming into force of the Constitution of India, the State of Madhya Bharat became a Part B State.  On the passing of  the Constitution  (Seventh  Amendment) Act 1956,  Madhya  Bharat State  ceased to be a Part B State and was  integrated  with the  State  of Madhya Pradesh as provided under  the  States Reorganisation Act, 1956. I shall now say something in  more detail about these several steps. The Instruments of Accession were executed in furtherance of the Indian Independence Act, 1947.  On June 3, 1947 the 30

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British Government announced their plan of transfer of power in  India.   The Government of India formed  a  Ministry  of States under Sardar Vallabihbhai Patel and it was decided to secure  the accession of Indian States on three  subjects  : External Affairs; and Communications.  The Act provided  for lapse of sovereignty of the British Crown in India over  the Indian  States‘ and they were free to accede to any  of  the two  Dominions  of  India  or Pakistan  or  to  continue  as independent   sovereigns.    A  reference  to   the   Indian Independence Act, 1947 appears necessary at this stage. The  preamble  of the Act stated that the Act  was  to  make provision  for  the setting up in India of  two  independent Dominions  and  to provide for matters consequential  on  or connected  with  the setting up of  those  Dominions  and-to substitute certain provisions in the Government of India Act 1935.   Section 1 of the Act fixed the 15th day  of  August, 1947  as the appointed ate, from which the  two  independent Dominions were to come into existence.  Section 2 demarcated their  territories, but without prejudice to the  generality of  the provisions of sub-section (3) of that  section,  the accession  of Indian States to either of the  two  Dominions was  not to be prevented.  Immediately afterwards the  India (Provisional  Constitution) Order 1947 was  promulgated  and certain  substitutions were made in the Government of  India Act 1935 by the Governor-General by virtue of subsection (2) of Section 8 read with section 9 of the Indian  Independence Act.   Sections 5 and 6 of the Government of India Act  1935 were replaced by the following sections "5. Establishment of the Dominion :               (1)The  Dominion of India established  by  the               Indian  Independence Act, 1947, shall as  from               the  fifteenth day of August 1947, be a  Union               comprising :-               (a)   the    Provinces   hereinafter    called               Governors’ Provinces;                (b)the  Provinces hereinafter called  Chief               Commissioners’ Provinces.               (c)   the   Indian  States  acceding  to   the               Dominion  in the manner hereinafter  provided,               and               (d)   any  other  areas  that  may  with   the               consent  of  the Dominion be  uncured  in  the               Dominion.               (2)   The said Dominion of India. is hereafter               in this               Act referred to as "the Dominion" and the said               fifteenth  day of August is hereafter in  this               Act   referred   to  as  ’the  date   of   the               establishment of the Dominion’.               31               6.    Accession of Indian States- (1)An Indian State shall be deemed to have acceded to  the Dominion   if  the  Governor  General  has   signified   his acceptance  of  an Instrument of Accession executed  by  the Ruler thereof whereby the Ruler on behalf of the State :-               (a)   declares that he accedes to the Dominion               with the intent that the Governor-General, the               Dominion  Legislature, the Federal  Court  and               any  other Dominion authority established  for               the purposes of the Dominion shall, by  virtue               of his Instrument of Accession but subject al-               ways  to  the  terms  thereof,  and  for   the               purposes  only  of the  Dominion  exercise  in               relation to the State such functions as may be               vested in them by order under this Act; and

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             (b)   assumes the obligation of ensuring  that               due  effect is given within the State  to  the               provisions  of  this Act so far  as  they  are               applicable therein by virtue of the Instrument               of Accession.               (2)   An Instrument of Accession shall specify               the matters which the Ruler accepts as matters               with respect to which the Dominion Legislature               may   make   laws  for  the  State   and   the               limitations,  if any, to which the  power,  of               the Dominion Legislature to make laws for  the               State,  and  the  exercise  of  the  executive               authority  the  Dominion  in  the  State,  are               respectively to be subject.               (3)A   Ruler   may,  by   a   supplementary               Instrument executed by him and accepted by the               Governor   General  vary  the  Instrument   of               Accession  of  his  State  by  extending   the               functions  which by virtue of that  Instrument               are  exercisable by any Dominion authority  in               relation to his State.               (4)References in this Act to the Ruler of a               State  include references to any  persons  for               the  time being exercising the powers  of  the               Ruler  of the State whether by reason  of  the               Ruler’s minority or for any other reason.               (5)In this Act a State which has acceded to               the  Dominion  is referred to as  an  acceding               State and the Instrument by virtue of which  a               State has so acceded               32               construed  together  with  any   supplementary               Instrument  executed  under this  section,  is               referred to as the Instrument of Accession  of               that State.               (6)As soon as may be after an Instrument of               Accession or supplementary instrument has been               accepted  by the Governor-General  under  this               Section,  copies of the Instrument and of  the               Governor-General’s acceptance thereof shall be               laid  before the Dominion Legislature and  all               courts  shall  take judicial notice  of  every               such instrument and acceptance." In  furtherance of these new provisions, the Instruments  of Accession   were   executed  on   different   dates,   after negotiations between the Government of India and the Rulers, but  nothing  turns upon the date of  an  Instrument.   Many Rulers   had  immediately  signed  Instruments  of   Merger, transferring full and exclusive authority, jurisdiction and powers in relation to the governance of their States to  the Government  of  India.  They were merged with  the  existing Provinces or were set up as Chief Commissioner’s  Provinces. Some  others  signed  Instruments  of  Accession  first  and Instruments of Merger later.  The remaining at first  formed themselves into different Unions of States, making over  the administration of their States to a Rajpramukh of the  Union of  the  States  vesting in him all  rights,  authority  and jurisdiction belonging to the Ruler which appertained to  or were incidental to the Government of the Covenanting States. In  this  way  several Unions of  States  or  United  States emerged.  A brief reference to the Instrument of Accession, the Covenants and the Instruments of Merger is necessary  at this  stage.   The Ruler of Gwalior, father of  the  present petitioner,  joined  the United State of  Madhya  Bharat  as already  indicated.  I can therefore conveniently study  the

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Instrument of Accession and the Covenant executed by him  as illustrative of the documents signed by the Rulers. I  begin with the Instrument of Accession.  In the  Preamble to  the Instrument the Ruler observed that he was  executing it in the exercise of his sovereignty in and over his State. He  declared that he was acceding to the Dominion  of  India and  authorised the Governor-General of India, the  Dominion Legislature,  the  Federal  Court  and  any  other  Dominion Authority.  established for the purposes of the Dominion  to exercise in relation to hi-, State functions vested in  them by or under the Government of India Act 1935 as in force  on the  15th  August  1947.   On  his  part  he  undertook  the obligation  of ensuring that effect was given to the  provi- sions of the Government of India Act 1935 in his State.   He accented that the Dominion Legislature would make law-, with respect  to  matters  specified  in  the  Schedule  to   his Instrument. 33 These topics have only a historical significance and need no mention here.  There were certain reservations, particularly in regard to any future constitution of India affecting  the continuance  or his sovereignty in and over the  State,  and the  exercise  of  any powers,  authority  and  rights  then enjoyed by him as Ruler.  The Governor-General accepted  the Instrument of Accession and signed it in token thereof. The  Ruler  of Gwalior next signed a Covenant  with  certain Rulers in the former Madhya Bharat area and agreed to form a United  State  of Madhya Bharat.  The covenant  contains  18 articles  and  4  schedules.  This covenant  is  a  detailed document  and is reproduced in the White Paper and  is  also exhibited  in the. case before me.  It is not  necessary  to refer  to all its terms but. the relevant ones may be  noted here.  The Covenanting States agreed to unite and  integrate their  territories  into one State  with  common  Executive. Legislature and Judiciary.  Room was kept, for other  Rulers to  join  later  if  they  were  so  minded.   The  Covenant established  a  Council of Rulers, with a right to  elect  a President (to be called the Rajpramukh of the United  State) and   one  Senior  Vice-President  and  two   Junior   Vice- Presidents.   The  President and the  Senior  Vice-President were  to  hold office during their lifetime and  the  Junior Vice-Presidents  for a term of five years.   The  Rajpramukh was to be aided and advised by a Council of Ministers to  be chosen  by  him  and they were to  hold  office  during  his pleasure.   July  1,  1948 was fixed  for  making  over  the administration  of the Covenanting States to the  Rajpramukh including  a transfer of all assets and liabilities  of  the State  and  of  the Scheduled  Areas.   The  Rajpramukh  had jurisdiction to make laws for the peace and good  Government of those areas whether with or without consultation with his Council   of   Ministers  but  subject   to   direction   or instructions of the Government of India. The Rajpramukh  was to execute by 15th June 1948 a fresh Instrument of Accession in place of the separate Instruments already executed by the Covenanting Rulers.  By that Instrument he was to accept the making  of laws by the Dominion Legislature on  all  matters mentioned in Lists I and III of the Seventh Schedule to  the Government  of India Act 1935 except the entries in  List  I relating  to any tax or duty.  The Rajpramukh and the  Vice- Presidents were to enter upon their duties on 11th May 1948. The  Rajpramukh and the Vice-President were to be  paid  Rs. 2,50 000 per year as consolidated allowances and the  Junior Vice  Presidents  were  to be paid such  allowances  as  the Rajpramukh  was  to  fix.  The executive  authority  of  the United State (subject to the provisions of the Covenant  and

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a  Constitution to be framed later) was to be  exercised  by the  Rajpramukh and the competant Legislature of the  United State  was  to be given the competence to  confer  functions upon the subordinate authorities but the Covenant 34 was  not  to  be deemed to transfer to  the  Rajpramukh  any functions conferred by any existing law on any Court, Judge, officer or local or other authority in a Covenanting State. The  Covenant next provided for the setting up, as  soon  as possible, of a Constituent Assembly in the manner set out in the  Third Schedule to the Covenant to frame a  Constitution of a unitary type for the United State within the  framework of  the  Covenant  and the Constitution  of  India  and  for providing a Government responsible to the Legislature.   The Rajpramukh  was to constitute not later than August 1,  1948 an  interim  Legislative Assembly for the  United  State  in accordance with the provisions set out in Schedule, IV  till the formation of the Constituent Assembly which was then  to perform  legislative functions as well. The  Rajpramukh  was also given power to promulgate,- Ordinances.  Articles XI to XV were as follows : "                       ARTICLE XI               (1) The Ruler of each Covenanting State  shall               be  entitled  to  receive  annually  from  the               revenues  of the.United States for  his  privy               purse   the  amount  specified  against   that               Covenanting State in Schedule I :               Provided  that  the  sums  specified  in   the               Schedule  in respect of the Rulers of  Gwalior               and  Indore  shall  be  payable  only  to  the               present  Rulers  of these States  and  not  to               their  successors for whom provision  will  be               made subsequently.               (2)The said amount is intended to cover all               the  expenses  of  the Ruler  and  his  family               including expenses of his residence, marriages               and  other ceremonies, etc. and shall  subject               to the provisions of paragraph (1) neither  be               increased  nor  reduced for any  reason  what-               soever.               (3)The  Rajpramukh  shall  cause  the  said               amount  to be paid to the Ruler in four  equal               instalments  at the beginning of each  quarter               in advance.               (4)The  said  amount shall be free  of  all               taxes  whether imposed by the  Government  of               the  United  State  or by  the  Government  of               India.               35                                      ARTICLE XII               (1)The  Ruler  of  each  Covenanting  State               shall  be entitled to the full ownership,  use               and  enjoyment of all private  properties  (as               distinct  from State properties) belonging  to               him  on  the  date  of  his  making  over  the               administration  of  that  State  to  the   Raj               Pramukh.               (2)He  shall  furnish to  the  Raj  Pramukh               before  the  first  day  of  August  1948   an               inventory   of   all   immovable   properties,               securities  and cash balances held by  him  as               such private property.               (3)If any dispute arises as to whether  any               item  of property is the private  property  of               the  Ruler  or  State property,  it  shall  be

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             referred  to such person as the Government  of               India  may nominate in consultation  with  the               Raj  Pramukh and the decision of  that  person               shall  be  final and binding  on  all  parties               concerned :               Provided  that  no such dispute, shall  be  so               referable after the first day of July 1949.                                ARTICLE XIII               The  Ruler of each Covenanting State, as  also               the  members of his family, shall be  entitled               to all the personal privileges, dignities  and               titles  enjoyed  by them,  whether  within  or               outside   the   territories  of   the   State,               immediately  before  the 15th  day  of  August               1947.                                ARTICLE XIV               (1)The  succession,  according to  law  and               custom to the gaddi of each Covenanting State,               and   to  the  personal  rights,   privileges,               dignities and titles of the Ruler thereof,  is               hereby guaranteed.               (2)Every question of disputed succession in               regard to a Covenanting State shall be decided               by the Council of Rulers after referring it to               a bench consisting of all the available Judges               of  the High Court of the United State and  in               accordance with the opinion given by the  High               Court." Article XV gave complete immunity to the Ruler in respect of past  acts and omissions.  The next two articles  guaranteed the continuance in service, of the permanent members of  the public  service  of  the  States  on  conditions  not   less advantageous  than  those  existing on  April  15.  1948  or payment  to  them of reasonable  compensation.   There  were other guarantees and also 36 immunity for past acts or omissions in the execution of duty as  a  Public  servant.  Article XVIII  continued  in  their respective  States the prerogative of suspension,  remission or  commutation  of death sentences enjoyed  by  the  former Rulers  of Gwalior and Indore.  Schedule I then  stated  the Privy  Purses  of  the  Rulers.  It  was  divided  into  two sections-Salute  States and Non-Salute States.  They  ranged from  Rs. 25,00,000 to the Ruler of Gwalior to Rs. 6,000  to the  Rubber of Mathwar.  The rest of the provisions are  not material for my discussion. The Covenant was signed by all the Rulers of the Covenanting States  and  the Government of India endorsed  on  it  their acceptance thus :               "The Government of India hereby concur in  the               above   Covenant   and   guarantee   all   its               provisions.  In confirmation whereof Mr. Vapal               Pangunni Menon, Secretary to the Government of               India  in the Ministry of States, appends  his               signature on behalf and with the authority  of               the Government of India.                Secretary to the Government of India,                Ministry of States". Further  agreements  were  devised for each  of  such  other States  as  might  join later and the  Government  of  India concurred in the same way with such agreements. A  fresh  Instrument of Accession was executed by  the  Raj- pramukh  on  behalf of the United State  of  Madhya  Bharat. Special  provisions  were  made  for  avoiding   legislative conflict,   and  for  any  future  agreement   between   the

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Rajpramukh  and  the Government of India.   Such  agreements were  to form part of the Instrument of Accession.   It  was however expressly provided by clause 6 as follows :               "6. The terms of this Instrument of  Accession               shall  not be varied by any amendment  of  the               Act  or of the Indian Independence Act,  1947,               unless  such amendment is accepted by the  Raj               Pramukh  of the United State by an  Instrument               supplementary to this Instrument." The  Governor-General of India accepted this  Instrument  of Accession  on  September 13, 1948.  By then  23  Rulers  bad joined  the  United  State.  On November 24,  1949,  on  the passing of the Constitution of India, the Rajpramukh  issued a Proclamation after 37 a  resolution  of the Covenanting Rulers.  It  affirmed  the constitutional  relationship’ between the United  State  and the Dominion of India and provided as follows                         "PROCLAMATION FOR MADHYA BHARAT                          Gwalior, the 24th November 1949               WHEREAS with the inauguration of the new  Con-               stitution  for  the whole of India  now  being               framed  by the Constituent Assembly of  India,               the  Government of India Act, 1935, which  now               governs   the   constitutional    relationship               between .this State and the Dominion of India,               will stand repealed;               AND  WHEREAS,  in the best  interests  of  the               State  of  Madhya  Bharat,  which  is  closely               linked  with the rest of India by a  community               of  interests in the economic,  political  and               other   fields,  it  is  desirable  that   the               constitutional    relationship     established               between this State and the Dominion of  India,               should  not only be continued as between  this               State and the contemplated Union of India  but               further strengthened, and the Constitution  of               India  as drafted by the Constituent  Assembly               of  India,  which  includes  duly.   appointed               representatives  of  this  State,  provides  a               suitable basis for doing so;               I, Jiwajirao Madhavrao Scindia, Raj Pramukh of               the  Madhya  Bharat, now  hereby  declare  and               direct-               That  the Constitution of India shortly to  be               adopted  by the Constituent Assembly of  India               shall  be  the  Constitution  for  the  Madhya               Bharat  as  for the other parts of  India  and               shall  be enforced as such in accordance  with               the tenor of its provisions;               That  the provisions of the said  Constitution               shall,  as from the date of its  commencement’               supersede     and    abrogate    all     other               constitutional     provisions     inconsistent               therewith  which  are at present in  force  in               this State. This  in short is the constitutional history of  the  States which united to form the United State of Madhya Bharat.   It is  apparent  that  the  Instrument  of  Accession  and  the Covenants  operated  as  a constitution in  little  for  the governance of the United State.  The identity of the  United State  as  a  semi-independent unit was  preserved  and  the constitutional  framework of this State was indicated.   The Covenant was an Act of State on the part of the Rulers.   It may  be  regarded also as such by the  Government  of  India

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although  no volition beyond concurrence, of the  Government Played any Part whatever might I have been the diplomatic 38 consultations  between  the acceding United  State  and  the Government  of  India.   The  Government  of  India   merely accorded them recognition and guaranteed its provisions.  If treated  as an Act of State it ended with  the  recognition. It  was also an Act of State on the part of the  Rulers  who surrendered  their  lights  but  the  provisions  that  they evolved for the joint governance of their territories made a constitution  proper  of  which  the  Courts  were  to  take judicial  notice  and  apply according  to  their  tenor  as occasion demanded.  From these documents flowed consequences which  were binding alike upon the Covenanting  States,  the United  State of Madhya Bharat and the Government  of  India and   the   Courts-.   None  of  them  could   avoid   these consequences. The  Merger agreements were much simpler documents.   As  an illustration  I may refer to the Bilaspur Merger  agreement. It  was  executed  on the 15th August 1948 by  the  Raja  of Bilaspur.   It  consisted of five articles.   By  the  first article  the Raja ceded to the Dominion government full  and exclusive  authority,  jurisdiction and powers  for  and  in relation  to  the  governance  of  the  State,  agreeing  to transfer the administration on October 12, 1948.  By article 2  the Raja was to receive annually a sum of  Rs.  70,000/as privy purse free of taxes.  The sum included Rs. 10,000/- as an  allowance for the Yuvraj.  These amounts were  to  cover all  expenses and were not to be increased nor  reduced  for any  reason whatsoever.  By article 3 the Raja was  entitled to  the  full ownership, use and enjoyment  of  all  private properties (as distinct from State properties) belonging  to him, and he was to furnish an inventory of such  properties. In  case  of dispute the matter was to be referred  to  such officers with judicial experience as the Dominion government might  nominate and the decision was to be binding  on  both parties.   By article 4, the Raja, the Rajmata,  the  Yuvraj and  the Yuvrani were to enjoy all personal  privileges  en- joyed by them within and without the territories immediately before  the  15th  day of August 1947.   By  article  5  the Dominion government guaranteed the succession, according  to law and custom. to the gaddi of the State and to the  Raja’s perso nal  rights,  privileges dignities  and  titles.   The Merger agreement was signed by the Raja and Mr. V. P. Menon, Secretary in the Ministry of States.  Although  the  Merger  Agreement of the  Raja  of  Bilaspur sufficiently  illustrates  the  line  followed  it  may   be mentioned  here that some of the Merger Agreements had  more clauses  than the one noticed.  In the Merger  Agreement  of the  Maharao  of  Kutch there were other  articles  such  as immunity  for  past  acts of the  Maharao  in  his  personal capacity  or otherwise and also a guarantee for  continuance in  service of the permanent members of the Public  services of Kutch and for their conditions of service, pensions 39 and  leave  salaries  and immunity for past  acts.   In  the Bhopal  Merger  Agreement  the  Nawab  was  to  receive  Rs. 11,00,000/- as Privy Purse but each of his successors was to receive  only Rs. 9,00,000/-.  Article IV  however  provided that the income derived annually from the share of the Nawab in  the  original investment by Qudsia Begum in  the  Bhopal State  Railway, which share was agreed to be  Rs.  5,50,000, was to be treated as the personal income of the Nawab and to be  paid  by the Government of India to the  Nawab  and  his successors.  Article VII provided that the succession to the

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throne of Bhopal State would be governed by and regulated in accordance  with  the provisions of the Act  known  as  "The succession to the Throne of Bhopal Act of 1947", and then in force in the Bhopal State.  The Government of India  further agreed  that  all  rights  and  privileges  secured  by  the Agreement to the Nawab would be continued to his successor. The  course of historical events is different  according  to the  States  emerged in or merely acceded to  the  Dominion. The  merged States were either incorporated in the  existing Governor’s  Provinces  or, were  administered  centrally  as Chief  Commissioner’s  Provinces.  I am not  concerned  with these  historical  events  and, therefore,  I  refrain  from saying anything here. The next step in the chain of historical events in regard to Gwalior came with the Constitution which was accepted by the Rajpramukh  in  his Proclamation.  Special  provisions  were incorporated  in the Constitution to which reference may  be made  here.   Four  Articles in the  Constitution  are  only relevant  and are quoted here.  Article 291 was  amended  by the  Constitution (Seventh Amendment) Act, 1956 by  deleting clause (2) but is quoted here as it was before the Amendment :               "291 (1) Where under any covenant or agreement               entered into by the Ruler of any Indian  State               before the commencement of this  Constitution,               the payment of any sums, free of tax, has been               guaranteed or assured by the Government of the               Dominion  of India to any Ruler of such  State               as Privy Purse.               (a)   such sums shall be charged on, and  paid               out of, the Consolidated Fund of India; and               (b)   the  sums so paid to any Ruler shall  be               exempt from all taxes on income.               (2)   Where the territories of any such Indian               State  as  aforesaid are  comprised  within  a               State  specified  in Part A or Part B  of  the               First Schedule. there hall be charged on,  and               paid out of, the Consolidated Fund of               40               that  State  such  contribution,  if  any,  in               respect   of   the  payments   made   by   the               Government  of India under clause ( 1  )  and               for  such  period  as  may,  subject  to   any               agreement  entered into in that  behalf  under               clause  (1) of article 278, be  determined  by               order of the President". This  Article  does  not apply to the  State  of  Jammu  and Kashmir.   Article 366 contained a definition in (21)  which was  deleted  by the Constitution  (Seventh  Amendment)  Act 1956.  This definition may be read here :               "366.    In  this  Constitution,  unless   the               context  ’otherwise  requires,  the  following               expressions    have   the   meanings    hereby               respectively assigned to them, that is to say-               (21)  "Rajpramukh" means-               (a)   in  relation to the State of  Hyderabad,               the   person  who  for  the  time   being   is               recognised  by the President as the  Nizam  of               Hyderabad;               (b)   in  relation to the State of  Jammu  and               Kashmir’  or the State of Mysore,  the  person               who  for the time being is recognised  by  the               President as the Maharaja of that State; and               (c)   in relation to any other State specified               in  Part B of the First Schedule,  the  person

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             who  for the time being is recognised  by  the               President as the Rajpramukh of the State,  and               includes in relation to any of the said States               any  person for the time being  recognised  by               the  President  as competent to  exercise  the               powers  of the Rajpramukh in relation to  that               State;" These  two  repeals were occasioned  by  the  constitutional readjustment of States when Part B States disappeared.   The definitions  became  obsolete after the  Reorganization  and hence  they  were  deleted.   Article  366  contained  other definitions in (15) and (22)  which may be quoted:               "(15) ’Indian State’ means any territory which               the  Government  of  the  Dominion  of   India               recognised as such a State."               " (22) ’Ruler’ in relation to an Indian  State               means  the  Prince, Chief or other  person  by               whom  any  such covenant or  agreement  as  is               referred to in clause (1) of               41               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;" They  are  intact till today.  So also two  other  Articles, namely, 362 and 363.  of these the former does not apply  to the  State of Jammu and Kashmir, but the latter does.   They may be quoted here :               "362.   In  the  exercise  of  the  power   of               Parliament or of the Legislature of a State to               make laws or in the exercise of the  executive               power  of the Union or of a State  due  regard               shall  be  had to the guarantee  or  assurance               given under any such covenant or agreement  as               is  referred to in clause (1) of  article  291               with   respect   to   the   personal   rights,               privileges  and dignities of the Ruler  of  an               Indian State.               363  (1).   Notwithstanding anything  in  this               Constitution but subject to the provisions  of               article 143, neither the Supreme Court nor any               other  court  shall have jurisdiction  in  any               dispute  arising  out of any  provision  of  a               treaty, agreement, covenant, engagement, sanad               or other similar instrument which was  entered               into  or executed before the  commencement  of               this  Constitution by any Ruler of  an  Indian               State  and  to  which the  Government  of  the               Dominion  of India or any of its  predecessors               Governments  was a party and which has or  has               been  continued in operation after  such  com-               mencement, or in any dispute in respect of any               right  accruing  under  or  any  liability  or               obligation   arising   out  of  any   of   the               provisions  of this Constitution  relating  to               any   such   treaty,   agreement,    covenant,               engagement, sanad or other smilar instrument.               (2)   In this article--               (a)   ’Indian   State’  means  any   territory               recognised  before  the commencement  of  this               Constitution by His Majesty or the  Government               of  the  Dominion  of India as  being  such  a               State; and               (b)   ’Ruler’  includes the Prince,  Chief  or

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             other    person   recognised    before    such               commencement of His Majesty or the  Government               of  the Dominion of India as the Ruler of  any               Indian State."               42 The  intention  behind  the  definitions  in  2(a)  and  (b) specially  included here was to bind even those  Rulers  who were   recognized  before  and  who  might  not  have   been recognised by the President under article 366(22). The Indian States formed a significant but separate part  of India  before  they  merged with the rest of  India.  it  is common  knowledge  that the aim of the Government  of  India Act,  1935 was to associate the Indian States  with  British India  as equal partners in a loose federation.  When  India became  independent  by the Indian  Independence  Act  1947, British paramountly in respect of the Indian States  lapsed. In theory the Rulers became independent but, as shown above, in  actual  fact,  almost  all  the  Rulers  signed   almost immediately,   Instruments  of  Accession  in  August   1947 surrendering  Defence, External Affairs and  Communications. The  Rulers  immediately after Independence  became  divided into four classes :               (a)   those  who  had  signed  Instruments  of               Accession;               (b)   those  who  had  signed  instruments  of               Merger;               (c)   those  who  had formed  themselves  into               Unions  and the Unions had signed  Instruments               of Accession;               (d)   Hyderabad, Mysore and Jammu and Kashmir. The  merged States were either directly administered by  the Dominion  Government  as Chief Commissioner’s  Provinces  or were  handed  over to the neighboring Provinces.   Thus  216 States  merged  in the adjoining Provinces, 61  States  were converted  into centrally administered areas and 275  States formed Unions.  Only three States retained their  integrity; but  when the Constitution came into force, they too  became part  of  the  Union of India on a later  date.   They  were Hyderabad, Mysore and Jammu and Kashmir. The  Indian States covered about 48 per cent of the area  of the Indian Dominion.  The population of this area formed  28 per  cent of the total population of the Dominion.  All  the Rulers  (including  the Rajpramukhs of  the  Unions)  issued proclamations  of which reference has earlier been  made  in relation  to Gwalior.  On the merger or integration  of  the States  with the Union of India the Rulers were left with  a Privy  Purse  and  a few of their  personal  privileges  and properties.  The Privy Purses were fixed with due regard  to the incomes of the Rulers, before integration with a ceiling of  Rs. 10 lakhs.  Eleven Rulers were to be paid  more  than that sum as a personal Privy Purse.  The total amount of the Privy Purses came to Rs. 58 crores.  Today the highest Privy Purse  is Rs. 26 lakhs per annum to the Ruler of Mysore  and the lowest is Rs. 192 per annum to the Ruler of Kotodia. 43 The  Privileges of the Rulers included many items.  A  memo- randum  on  these privileges was issued by the  Ministry  of States  in 1949. it did not contain an exhaustive  list  but was  drawn  up to inform Provincial  and  Union  Governments about them.  It contained an itemised list of 34 privileges. They  included  several  exemptions from  the  operation  of Indian Laws, the enjoyment of Jagir and personal property of the Rulers and members of their families, the payment by the States of the marriage expenses of the brothers and  sisters of  the  Rulers, immunity from some processes of  courts  of

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law, immunity from requisitioning of the private  properties of  the  Rulers and their families and so on and  so  forth. During  the negotiations letters were written to the  Rulers to assure them that the Privy Purse was fixed in  prepatuity and the freedoms enjoyed by them would be continued. The Privy Purses and the Privileges were continued till  6th September  1970.  Their payment or enjoyment was a  part  of the  guarantee of the Constitution.  However the  All  India Congress Committee passed a Resolution on 25th June 1967 for their  abolition.   In furtherance of  this  resolution  the Union  Home  Ministry  held  several  conferences  with  the representatives of the Rulers.  Although shorn of all but  a shadow of their former power and panoply, the Rulers  seemed to regard themselves as something different from the  people or  perhaps, as princes in exile.  They had  their  Concord, their  Intendant-General  and Conciliar  Committee,  thereby evoking  a  certain measure of hostility among  persons  who were  oblivious of the constitutional transition  in  India. The  summary  of the proceedings of these  conferences  were marked  collectively as Annexure A annexed to the  affidavit of  the  Union  of India.  It  shows  six  meetings  between November 3, 1967 and January 8, 1970.  There were perhaps  a number  of  informal meetings  and  consultations.   Nothing seems  to have been achieved.  Government of India  repeated their intention of withdrawing the recognition of the Rulers and  stoppage  of the Privy Purses and Privileges,  and  was prepared only for a negotiated settlement as to the terms on which  the  abolition  should take place.   The  Concord  of Princes was not prepared to enter into any negotiations  and were chary of a fresh settlement which might be broken  just as  simply  as the past solemn engagements  and  assurances. The  Rulers who, before Independence, had  always  displayed the sentiment Ego et rex meus had realised that Princes were not  the  only  people in Whose word  trust  should  not  be placed. The Government of India acted rapidly.  The President in his speech  to  the  Houses gave expression  to  the  policy  of Government.   A  Resolution recommending the  abolition  was moved and passed in the Rajya Sabha.  A Bill was then  moved in the Lok 4-L744Sup.CI/71 44 Sabha intituled.  The Constitution (Twenty Fourth Amendment) Bill  1970.   It  consisted of three  clauses  and  a  short statement of Objects and Reasons.  ’the Statement read :               "The  concept of rulership, with Privy  Purses               and   Special  Privileges  unrelated  to   any               current  functions  and  social  purposes,  is               incompatible with an egalitarian social order.               Government have therefore decided to terminate               the Privy Purses and Privileges of the  Rulers               of former Indian States.  Hence this Bill.                14-5-1970                 Y. B. CHAVAN" The  Address  of  the  President to  the  Joint  Session  of Parliament,  the  Resolution  above  referred  to  and   the Statement of Objects and Reasons all gave identical reasons. The  Bill  was voted upon in the Lok Sabha on  September  2, 1970. 332 votes for and 154 votes against it, were cast.  It was considered in the Rajya Sabha ,on September 5, 1970  and was  defeated, 149 voting for and 75 against it.  It  failed in  the Rajya Sabha to reach the requisite majority  of  not less than two-thirds of the members present and voting. The Bill originally gave no indication of the date when  the Act  was  to  come into operation but in the  Lok  Sabha  an amendment  was accepted by which it was to come  into  force

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from  October  15,  1970.  By the  second  clause  the  Bill omitted  Article  291 and 362 of the  Constitution  and  the third clause omitted Article 366(22).  The same evening  the Cabinet  is said to have met and to have decided  to  advise the  President  to withdraw the recognition of  the  Rulers. The  same  night  the  President  signed  at  Hyderabad   an instrument  withdrawing  recognition  of  all  the   Rulers. Separate  orders were. issued to all the Rulers on  the  6th September 1970 and they were also notified in the Gazette as already mentioned. on September 7, 1970, the Finance Minister laid on the table of  the Rajya Sabha a statement.  He claimed that the  power of  the President to withdraw the recognition of the  Rulers was unquestioned and had also been suggested as  alternative to  the amendment of the Constitution, and  that  Government was in fact going to use the power after the adoption of the Bill  amending the Constitution.  He gave as his reason  for the   President’s   action  that  the  Bill   amending   the Constitution was lost by a fraction of a vote in one of  the Houses, that there was widespread support against this  out- moded  and  antiquated system of Privy Purses’, that  even those who opposed the Bill supported the abolition and 45 that it was Government’s policy to put an and to the concept of  Rulership  and  the abolition of Privy  Purses  and  the Privileges.   He hinted that arrangements would be  made  to enable Rulers to make adjustments in the transitory  period. These  petitions were then filed to question the  action  of the President and the Government of India. The   petitioners  put  at  the  forefront  the   sentiments expressed  at the time of the Merger of the  Indian  States. The Princes were then described as imbued with  imagination, foresight   and  patriotism  and  as  co-architects   of   a democratic  and united India.  Sardar Vallabhbhai  Patel  as the  Minister in the newly formed Ministry of States made  a speech on October 12, 1949 in the Constituent Assembly  (Ex. C) in which he pointed out that the Madhya Bharat Rajpramukh alone gave sufficient cash assets which, if invested,  would cover  payments to the Rulers as Privy Purses. and that  the payments  to the Rulers represented one-fourth of what  they were previously enjoying.  He said that there was nothing by which the Rulers could be forced to merge their States  with India  and  that  the Privy Purses were  quid  pro  quo  for parting  with  the  ruling  power  by  the  Rulers  and  the dissolution of their States as separate units.  He  regarded this  as  a  small price for the  bloodless  revolution  and avoidance of mischief.  He exhorted the Constituent Assembly that  the Indian Peoples on their part should  ensure  fully the guarantee given to them and concluded:               "Our  failure  to do so would be a  breach  of               faith    and    seriously    prejudice     the               stabilization of the New’ Order". The same sentiments were reiterated by Mr. V. P. Menon  (who was  the Secretary to the Ministry) in his recent book  "The Story  of the Integration of the Indian  States",(1961)  pp. 461 and 462.  He cataloged the number of villages,  palaces, museums,  buildings, stables garages, fleets of motor  cars, aeroplanes  etc. surrendered by the Rulers.  He pointed  out that  cash  balances were to the tune of Rs. 77  crores  and that  palaces  in Delhi alone were worth  several  lakhs  of rupees.   According to him, the price paid as  Privy  Purses was  not  too high  for  integration  and  indeed  it  was insignificant when compared with what the Rulers had lost. The petitions are long argumentative documents and the reply affidavit equally so.  The verbosity of the petitions (which

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are  almost  identical) and the reply  affidavit  (which  is common  to  all petitions) does not render the-task  of  the Court  in  this  important  case any  the  easier.   It  is, therefore,  necessary to place in their  proper  perspective the respective cases of the parties. 46 According  to  the  petitioners, the failure  to  amend  the Constitution  resulted  in  the  retention  in  it,  of  the articles  relevant to the Rulers’ rights.   These  Articles, particularly  Articles 291 and 362 continued the  obligation of  the  Government  to pay the Privy  Purses  and  also  to recognise the Privileges.  The Privy Purses stood charged on and  were to be paid out of the Consolidated Fund  of  India and   even  Parliament  could  not  vote  upon  them.    The assurances  and guarantees being that of the people  in  the Constitution,  the  Executive Government could  not  by  the indirect device of withdrawing the recognition of the Rulers avoid  the  obligation created by the  Constitution.   These assurances and guarantees of the Constitution, the Accession and  Integration  were but steps and the fixation  of  Privy Purses and the recognition of the Privileges was not doubt a historical   fact  but  the  guarantees  flowed   from   the Constitution  and were independent of the  historical  fact, and  had thus to be carried out according to  the  constitu- tional  provisions.   They  based their  claim  not  on  the agreements  or  the  covenants  but  on  the  constitutional provisions.   According to them, the order of the  President was  in  violation  of the spirit and  meaning  of  Articles 366(22), 291 and 362 and was an affront to Parliament  which had  turned down the move for amendment of  these  articles. The President’s action robbed the articles of their  content which Parliament did not allow to be done and thus the order of  the President indirectly had the effect of amending  the Constitution.   The President’s order itself was said to  be mala  fide, ultra vires since his power was to  recognise  a Ruler  at  a  time and for the time  being  or  to  withdraw recognition  from  a  Ruler for cogent  and  valid  reasons, naming  in  his  place  a successor,  and  not  to  withdraw recognition  from  all Rules en masse for no  reason  except that  the  concept of Rulership was considered  outmoded  or that  some  persons  held the view that  it  should  not  be continued.   According  to the petitioners the  gaddi  of  a Ruler had to be filled in accordance with the law and custom of the family and could not be left vacant.  The vast  power to withdraw recognition from all the Rulers at the same time without nominating any successor could not and did not  flow from  the  definition of a Ruler in  Article  366(22)  which contemplated  the Continuance of a Ruler who had signed  the Merger  Agreement or his successor.  The President was  thus guilty of a breach of his duties under the Constitution  and acted  outside his jurisdiction.  The act of  the  President was thus said to offend Articles 53, 394, 295 291 and 362 of the Constitution. In   supporting  their  petition  under  Article   32,   the petitioners claimed that important questions of  deprivation of  property  and  of personal liberty  were  involved.   As illustrations  the petitioners contended that the  right  to receive Privy Purses was a right to 47 property of which the Rulers stood deprived as also of other personal properties and benefits of exemptions under diverse laws  was also an inroad upon property rights.  Since  there was no authority of law and no compensation, the action  was said to offend Articles 19(1)(f) and 31 of the Constitution. They   also  claimed  that  Government  was   prevented   by

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promissory  estoppel and had acted in breach of a  fiduciary duty. In  the  reply  affidavit  filed by  Mr.  Asoka  Sen  (Joint Secretary   in  the  Ministry  of  Home  Affairs)  all   the allegations and submissions (besides the patent facts)  were denied.   The  main contentions in reality  were  that  this Court lacked jurisdiction to enter upon this dispute in view of the express bar of Article 363 that the petitions did not lie  as  no  right of property or personal  liberty  of  the petitioners,  was jeopardised and lastly that the action  of the  President was perfectly valid and binding as it  was  a political  act in the exercise of the sovereignty of  India, as  to which this Court could say nothing being outside  its jurisdiction.   ’Article  363, it was  claimed,  barred  the jurisdiction  of all Courts (including the Supreme Court  of India)  in  any dispute arising out of any  provision  of  a treaty,  agreement,  covenant, engagement,  sanad  or  other similar   instrument   which   was   executed   before   the commencement of the Constitution and to which the Government of  the  Dominion  of  India  or  any  of  its   predecessor Governments was a party and which had,-or had been continued in  operation  or  in any dispute in respect  of  any  right accruing  under or any liability arising out of any  of  the provisions  of the Constitution relating to any such  treaty etc. and the present was such a dispute.  Since the  article began  with  the  words "Notwithstanding  anything  in  this Constitution", the article could only be read by itself  and even  the chapter on Fundamental Rights was  excluded.   The reason  given  was  that these  instruments  were  political agreements   between  High  Contracting  Parties   and   the Municipal Courts had no say in matters which were  political or Acts of State.  The Covenants were not self-executing and created   imperfect  obligations  and  depended  for   their enforceability  upon the willingness of Governments  to  im- plement  them.   Since  the claim was based  upon  what  was recognised  in these instruments, this Court could not  give any  relief  as  it  had no  jurisdiction  to  do  so.   The President’s,powers to recognise a Ruler, which carried  with it  the  power  to withdraw  such  recognition  flowed  from Article  366(22)  and  this  power  being  an  incident   of sovereignty  and  a political act was  not  questionable  in Courts  of Law.  The bar of Article 363 covered such a  case also because there was nothing to show that any  recognition carrying  with  it  a Privy Purse and  Privileges  was  ever intended to be perennial even when the State policy demanded an abolition.  The Privy Purse itself being-in the nature of a  political pension, a claim to it was not property and  no claim could arise if it was 48 stopped.   Article  291 did not create any legal  right  but only  laid  down the source and method of payment  of  Privy Purse  guaranteed  by the Dominion of India and even  if  it were  assumed  that it was private property  or  that  other property  rights  were  affected by the  withdrawal  of  the recognition,  the matter was not justiciable because of  the bar of Article 363 which applied to Articles 291 and 362. The  pleadings in the case are long but the points are  few. The  case involves a positive and a negative approach in  so far  as  this  Court-is concerned.   The  positive  approach involves  the  consideration  of the  reliefs  that  can  be granted  and the negative approach the bar  operating  under Article  363.  The first approach requires consideration  of the validity of the action of the President.  It is  obvious that if the action of the President is valid and  operative, the implications of that action must necessarily follow.  If

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it is invalid, for any reason, then the question of the  bar of the jurisdiction of the Court to give relief will  arise. The  Union  Government however places the bar  at  the  very threshold  and  contents  that the dispute  is  such  as  is expressly barred by Article 363 but the petitioners  contend that  there is no dispute at all under Articles 291 and  362 or it is not of the kind contemplated by that Article.   The Union  Government asks that the question of jurisdiction  be decided  first  because in their opinion it  is  conclusive, while the other side contends that there is no( dispute once the  invalidity  of’ the President’s order  is  established, since articles 291 and 362 would then speak for themselves. I  intend considering first the question of the validity  of the  order of the President because everything turns on  it. The arguments for and against that action may, therefore, be considered.   According  to the Union of India  the  act  is political   and   in  the  exercise   of   sovereignty   and paramountly.  It cannot, therefore, be questioned in a Court of  Law.  According to the petitioners it is not, and  is  a plain  executive order open to question like any other  such act  and  the bar of article 363 does not apply  to  such  a dispute. The  Union  government invokes the analogy  of  the  British Crown  Paramountcy which lapsed on the Indian  Independence. In  this  connection  the claim is that  the  provisions  of Article 363 and 366(15) and (22) preserve the paramountcy of the Crown in the President.  This argument is independent of the  question  of bar of jurisdiction under  Art.  363.   It seeks to put the President’s act outside the jurisdiction of the  Court by reason of the nature of the act.  A word  may, therefore,  be  said about the paramountcy  of  the  British Crown  and  what  is  meant.  Reference  was  made  in  this connection by the Attorney General to the White 49 Paper  on  Indian  States, Mr. V. P.  Menon’s  book  already referred to, and the account contained in a recent book ’The Great  Divide’ by Mr. Hodson.  He traced the paramountcy  of the British Crown in India.  I do not consider it  necessary to   refer  to  them.   The  best  exposition   of   British Paramountcy  is  to  be found in a  famous  letter  by  Lord Reading Viceroy of India addressed to the Nizam of Hyderabad when  the latter claimed rights of kingship.  It is  printed as Appendix I to the White Paper.  This is what the  Viceroy said               "  The  Sovereignty of the  British  Crown  is               supreme in India, and therefore no ruler of an               Indian   State   can  justifiably   claim   to               negotiate  with the British Government  on  an               equal  footing.   Its supremacy is  not  based               only upon treaties and engagements, but exists               independently  of them and, quite  apart  from               its prerogative in matters relating to foreign               powers and policies, it is the right and  duty               of the British Government, while  scrupulously               respecting  all treaties and engagements  with               the Indian States, to preserve peace and  good               order throughout India.  The consequences that               follow are so well known, and so clearly apply               no less to Your Exalted Highness than to other               Rulers,  that  it seems  hardly  necessary  to               point  them  out.  But  if  illustrations  are               necessary.   I would remind Your Exalted               Highness  that  the Ruler of  Hyderabad  along               with  other  Rulers received in 1862  a  Sanad               declaratory of the British Government’s desire

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             for   the  perpetuation  of  his   House   and               Government,  subject to continued  loyalty  to               the  Crown : that no succession in the  Masnad               of Hyderabad is valid unless it is  recognised               by His Majesty the King-Emperor : and that the               British  Government  is the  only  arbiter  in               cases of disputed succession.               5.The  right of the British Government  to               intervene  in the internal affairs  of  Indian               States is another instance of the consequences               necessarily  involved in the supremacy of  the               British  Crown.  The British  Government  have               indeed shown again and again that they have no               desire  to exercise this right  without  grave               reason.   But the internal, no less  than  the               external  security  which the  Ruling  Princes               enjoy  is  due ultimately  to  the               protecting  power of the  British  Government,               and where Imperial interests are concerned, or               the  general welfare of the people of a  State               is  seriously and grievously affected  by  the               action  of  its  Government, it  is  with  the               Paramount    Power    that    the     ultimate               responsibility  of taking remedial action,  if               necessary, must lie.  The varying degrees of               50               internal  sovereignty which the  Rulers  enjoy               are  all  subject to the due exercise  by  the               Paramount Power of this responsibility.  Other               illustrations   could   be   added   no   less               inconsistent  than  the  foregoing  with   the               suggestion that except in matters relating  to               foreign powers and policies, the Government of               Your   Exalted   Highness  and   the   British               Government stand on a plane of equality.   But               I  do  not  think I need  pursue  the  subject               further.   I  will merely add that  the  title               "Faithful  Ally" which Your  Exalted  Highness               enjoys  has  not the effect  of  putting  Your               Government in a category separate from that of               other States under paramountcy of the  British               Crown". The  1858 Act had recognised all treaties made by  the  East India  Company  with the Rulers, as binding  on  the  Crown. Lord  Canning in his dispatch of April 30, 1860  recommended the  Perpetuation  of  the rule of the  Princes  over  their States.   This was accepted and a special power of  adoption was  recognised and new sanads were issued.  The  policy  of annexation started by Lord Dalhousie then ceased.  The Ruler could, thereafter, be punished only for extreme bad  conduct but  even so the territory was not annexed.  The  Ruler  was deposed but a successor was recognized in his place. This  position  continued down to 1935. in 1927  the  Butler Committee  clearly recognised the claim of the Princes  that making any transfer of the Crown’s rights and obligations in relation  to  the States, to persons not under  the  Crown’s authority,  would  be conditional on the  agreement  of  the States.   This was particularly directed against  an  Indian Government responsible, to the Indian Legislature.  To  keep the Indian Government away from the States, after the advent of  the  Government  of India Act, 1935  the  old  political department   under  the  charge  of   the   Governor-General disappeared.   Previously the  Governor-General’s  Executive Council  had  left  the States  entirely  to  the  Governor- General.   The  Act of 1935 formed the basis of  a  personal

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relationship between the States and the rest of India.  This meant  a  reversal  of the policy  and  the  British  Indian Executive  was slowly deprived of all constitutional  status vis-a-vis the States.  A Crown Representative was introduced as  the  link  between the States and  British  India.   The Government  of  India Act 1935 had visualised  a  federation between British India and the Indian States but that  scheme did  not  materialise.  The Indian States  were  anxious  to create  sovereign  States  but  the  Crown  prerogatives  in respect  of them continued.  Lord  Linlithgow’s  declaration promised  no  commitment  about  the  States  without  their consent in any future constitution 51 that  the  Indians  might frame for  themselves.   This  was implemented  by instructions to the Governor-General not  to hand  over paramountcy to the future Indian  Government  and paramountcy, so long as it lasted was that of the Crown  and not of the Government of India. When  the Constitution came paramountcy had already  lapsed. The Indian States were able to make several reservations  in their  own  favour.  They were anxious to  frame  their  own Constitutions  but many States could not withstand  pressure of  the  Ministry of States and thought better  of  merging. with  such  reservations as the Merger Agreements made  in their  favour.  The other States like Hyderabad, Mysore  and Jammu  &  Kashmir on the one hand and the United  States  or Union  of  States  on the other also  dropped  the  idea  of separate  Constitutions  for  themselves  (except  Jammu   & Kashmir)  and  integrated with India, accepting  the  Indian Constitution.  The Rulers were allowed to get a Privy  Purse free  of taxes on income and to enjoy personal property  and privileges.   Articles  291,  362,  366(15)  and  (22)  were included to recognise those conditions on which surender  of power  had  taken place.  Article 363 was included  to  keep certain matters away from Courts and now the most  important question   is  what  was  granted  to  the  Rulers  by   the Constitution and how for their rights could be enforced in a Court of Law.  Paramountcy as such was no more as there  was no paramount power and no vassal.  The Rulers had lost their territories  and  their right to rule and  administer  them. They were left only a recognition of their original title, a privy purse, their private properties and a few  privileges. These rights were the only indicia of their former soveignty but  they  enjoyed  them by the force  of  the  Constitution although  in every respect they were ordinary  citizens  and not  potentates.  The paramountcy which the Crown  exercised over  them  was different.  Then the Crown had  an  absolute freedom  to  make  and  unmake Rulers  in  the  exercise  of paramountcy.   The Constitution ensured the position of  the Ruler  and his successor with regard to the Privy Purse  and privileges,  although  leaving the President the  right,  to confer  that status on a Ruler by recognition.  This  result was reached by treaties, covenants and agreements. The source or origin of paramountcy of the Crown was not the treaties,  sanads or agreements.  There were no  paramountcy rights  by  reason of which the British were  paramount  but because they were paramount, therefore, they had paramountcy rights.   When  paramountcy lapsed it did not  fall  on  the shoulders  of Indian Government.  The right to  recognise  a Ruler  from  out  of several claimants was  not  an  act  of paramountcy.  The selection had to be in accordance with law and  custom.  It was not the arbitrary power which made  the conferral of Rulership a gift 52 from the Crown.  There is no provision to that effect in the

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Constitution or even the Covenants and Agreements.  That the Constitution gave the right to the President to recognise  a Ruler  for the time being, is apparent enough but it  cannot be stretched to give a paramountcy of the same character  as that  enjoyed  by  the  British  crown.   To  claim  such  a parmountcy one has to ignore completely the arrangements  by which  the Rulers parted with their territories  and  Ruling rights   and  were  assured  of  their  Privy   Purses   and privileges.  These rights became constitutionally  protected rights  which  so long as the Ruler’s line was  not  extinct belonged  to the Ruler for the time being.  In one  sentence when   the  guarantees  were  given  by  the   Constitution, paramountcy,  if  any, went out.  If it  was  intended  that rightful  claims could be disregarded, at any time,  a  very clear  provision authorising that they be  overridden  would have  been included.  On the other hand article 362 says  in admonitory  terms  that  in the exercise  of  the  power  of Parliament or of the Legislature of a State to make laws  or in  the  exercise of executive power of the Union or,  of  a State, due regard shall be had to the guarantee or assurance given in any such Covenant or Agreement as is referred to in clause  (1)  of  Article 291 with respect  to  the  personal rights, privileges, and dignities of the Ruler of an  Indian State.  This provision is rather the converse of paramountcy in as much as it compels the two limbs of Government to have ’due  regard’ to the guarantees and assurances given to  the Rulers. There  can be no paramountcy against a citizen of India  and the  Rulers today are not potentiates they were.   They  are citizens  of  India  like other citizens  albeit  with  some privileges and privy purses which other citizens do not get. That  is an accident of history and with the concurrence  of the Indian People in their Constituent Assembly.  The  power that  has  been exercised against them must,  therefore,  be justified  under  the Constitution and the laws and  not  by invoking  a  nebulous  doctrine of  paramountcy  which  Lord Jowitt describes in his Dictionary of English Law thus               The  relationship of the Sovereign as  Emperor               of  India to the rulers of the native  States,               terminated  by  the Indian  Independence  Act,               1947". The Attorney General contended that article 363  ’recreated’ paramountcy.   That  article was intended  to  keep  certain matters  outside the jurisdiction of the Court.  It must  be construed  according to its own terms.  No  meaning,  beyond what  the words convey, can be attributed to those words  by resorting to the imperial doctrine.  What those words mean I shall consider later but I 53 reject  the  claim that the President or the  Government  of India  can invoke the doctrine to sustain an illegal  inroad upon the rights of citizens. Nor  is the argument that this was some kind of an  ’act  of State’  of any more validity.  This Court has ruled on  more than  one occasion that an act of State’ is  not  available against  a  citizen.  An act of State is a sovereign  act which  is neither grounded on law nor does it pretend to  be so.   It was described by me, quoting from  Fletcher-Moulton L.  J.  Salaman  v. Secretary of State for  India(1)  as  ’a catastrophic  change constituting a new departure’,  in  the State  of  Saurashtra v. Menon Haji Ismail(2).  I  have  not been able to better that expression.  I further pointed  out that ’in civil commotion or even in war or peace, the  State cannot  act ’catastrophically’ outside the ordinary law  and there is legal remedy for its wrongful ’acts against its own

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subjects or even a friendly alien within the State".  I  may again reaffirm the observations in that case ’based upon the statement of the law by Lord Kingsdown in Secretary of State in  Council for India v. Kamachee Boyl Sabha (3).   This  is what I Said:               "The question thus ,Is always : Did the State               or     its    agents    purport     to     act               "catastrophically’ or subject to the  ordinary               course  of the Law?  This question was  posed               in Secretary of State in Council for India  v.               Kamachee  Boye  Sahaba by  Lord  Kingsdown  in               these words :               "What  was the real character of the act  done               in  this case?  Was it a seizure by  arbitrary               power on behalf of the Crown of Great Britain,               of   the   dominations  and  property   of   a               neighbouring  State, an act not  affecting  to               justify  itself on grounds of  Municipal  Law?               Or  was it, in whole or in part, a  possession               taken by the Crown under colour of legal title               of  the property of the late Raja of  Tanjore,               in  trust  for  those who, by  law,  might  be               entitled  to  it  on the  death  of  the  last               possessor?  If it were the latter, the defence               set up, of course, has no foundation." The  defence is not available if there is only a  colour  of legaltitle  against  a citizen.  In that event,  the  action must  fail  unless  supported by law.  Since  there  are  no sovereign  or political powers under our Constitution  every action  of  the  Executive  limb  of  Government  must  seek justification  in some law.  The very existence  of  article 363, which is said to incorporate some kind of (1) [1966] I K.B. 613 at 640 (2) [1960] I S.C.R. 537 at 544 (3) [1859] 13 Moore P.C. 22. 54 paramountcy  or  act  of State,, shows  that  there  is,  no political  power outside the law, otherwise  an  additional bar would hardly have been necessary. The  learned Attorney General when faced by the  rulings  on the act of State of this Court and the English Courts,  gave up  the attempt for justification as such and  pleaded  that the    Covenants   and   Agreements    created    ’imperfect obligations’.   The phrase.’imperfect obligations’  is  more often  to  be  met with in the Law of Contract  but  it  was applied by Tindal, C.J. to political treaties in G. Gibson & Ors.  Assignees of J. Mallandaino Bankrupt v. The East India Co.(1).  There  the claim was made by a  retired,’  Military Officer for pension against the Directors of the East  India Company  based on certain treaties.  It was held  that  such agreements  lacked  vinculum juris.  The  Phrase  ’imperfect obligations’  was  thus  used in regard  to  individuals  as subjects   of   international  rights   and   duties.    The recognition  in an international treaty or other  instrument of  rights inuring to the benefit of individuals other  than the  parties  to the agreement, is sometimes  ’held  not  to confer  the right of enforceability at the instance of  such other  persons.   Therefore,  the  beneficiary  under  these rights  cannot  take  measures to enforce them  by  his  own independent steps.  In the Peter Pazmany University(1)  case the Permanent ,Court of International Justice observed               "It  is scarcely necessary to point  out  that               the capacity to possess civil rights does  not               necessarily  imply  the capacity  to  exercise               those rights oneself".

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Thus  a  rule of International Law formerly held  the  field that persons holding such rights are incapable of  asserting them in the international sphere or in the Municipal Courts. The  instrument may make them owners of rights and yet  take away  the  remedy  from them.  This is the  sense  in  which Tindal C.J. used the phrase ’lacking in vinculum jurists This  position has now altered and there is a rethinking  on the  subject.  It is now gradually gaining recognition  that if    there   be   ’some   municipal   legislation    giving enforceability to the right, then the right can be  claimed in  a  Municipal Court.  This change of  view  followed  the Advisory  Opinion  of the Permanent Court  of  International Justice in the jurisdiction of the Courts of Danzing in  the matter of Railway officials in Danzing. (I) The rights given by a treaty received a broader acceptance there.  This  case gave  an  exposition of the. rights of  individuals  in  the international (1) 132 E.R. 1105   (2) Series A/B No. 61 p. 231 (3) Advisory Opinion No. 15, series B   No. 15. 55 sphere and the Municipal Courts.  The argument of Poland  in the  case was that the agreement between Poland and  Danzing regulating  the  conditions  of employment  of  the  Railway officials taken over in Railway Service, created rights only between  Poland  and Danzing and as that agreement  was  not incorporated in the laws of Poland, it created no rights for individuals, and that the Danzing Courts had no jurisdiction to  decide  in respect of those rights.  The Court  did  not accept the contention.  It observed               "It may be readily admitted that, according to               a well-established principle of  international               law,    the   Beam-tenabkommen,    being    an               international  agreement,  cannot,  as   such,               create  direct  rights  and  obligations   for               private   individuals.   But  it   cannot   be               disputed   that   the  very   object   of   an               international  agreement,  according  to   the               intention  of the contracting parties, may  be               the  adoption by the Parties of some  definite               rules,   creating   individual   rights   and-               obligations  and enforceable by  the  national               Courts.   That there is such an  intention  in               the   present  case  can  be  established   by               reference     to    the    terms    of     the               Beamtenabkommen." (Page 17) Before  dealing with the position of the Rulers  themselves, let me illustrate the application of this observation in our country  in  relation to third parties,  safeguarded  by  an international   agreement.    The   Covenants   and   Merger Agreements  contained  clauses guaranteeing  continuance  of service to the Civil Servants and of their pensions.   Those Civil  servants  would not have been able to  enforce  these agreements in Municipal Courts by their own individual steps if  there  was  no  law or the  rights  were  not  otherwise recognised.  But when they shared with the Civil servants of the  former British India, the benefits of Articles  309-311 of  the Constitution and the Rules governing such  services, it  is  not possible to deny to them the benefits  that  the Constitution  and the Rules confer.  The  Covenants,  cannot then  be  said to create ’imperfect obligations’  since  the Constitution takes the matter into itself and gives them  is own  guarantees.  The individual rights and  obligations  no doubt  originally  flowed  from  a  contract  between   High Contracting  Parties  and might not have create  a  vinculum juris in favour of third parties but the Constitution having

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granted rights and created corresponding obligations,  those rights and obligations are enforceable in our Courts.   This Court  has  ruled on many occasions that  a  recognition  of rights by law or otherwise makes them _justiciable : see for example State of Rajasthan v. Shyam Lal(1). (1)  [1964] 7 S.C.R. 174. 56 The  case  of  the Rulers in a fortiori  for  they  are  the contracting parties.  In so far as those guarantees became a part  of  our  Constitution and  were  included  in  various statutes  passed by Parliament such as the Income-,tax  Act, the Wealth-tax Act etc., they would be enforceable according to  the  tenor  of  the Constitution  ,and  the  other  laws (subject of course to such bar. as the Constitution  creates by  Article 363).  Then no question of an ’act of,State’  or of   ’imperfect   obligations’  arises.   To   sustain   the President& act repudiating the rights and obligations on the basis of a discarded theory of ’imperfect obligations’ would drain the constitution and the. laws of their efficacy by an executive  act without amendment of the Constitution or  the laws and that cannot be permitted.  This is not a right  for enforcement  in foro Conscientiae to make good, or of  which the  performance  could  only  be  sught  for  by  petition, memorial or remonstrance.  This is a ,case for an action  in a  Court  of  Law  if  the dispute  is  not  barred  by  the Constitution itself. Therefore there is no bar to the jurisdiction of this  Court except  that created by Article 363.  The ambit of that  bar will be worked out by me on the terms of that article  later but before that bar can be applied one must know what is  it that is in controversy here.  The main dispute is as to  the validity  of  the  action of the  President  in  withdrawing recognition  from  the  Rulers without  an  exception.   The petitioners  question the power, authority and  jurisdiction of  the  President to do so.  They characterise the  act  as mala  fide,  ultra vires and therefore a  nullity.   I  will consider the matter in the same order. The  charge of mala fide action in this connection can  only mean  want  of  good faith.  Good  faith  according  to  the definition in the General Clauses Act means a thing which is in  fact  done honestly, whether it is done  negligently  or not.  In other words an act done honestly must be deemed to, be done in good faith.  Mr. Palkhivala described the act  as wanting  in good faith and relying on many  cases  contended that  want of good faith must avoid the act.  It  is  hardly necessary to refer to those cases here as it is well-settled that  lack of bona fides unravels every transaction.   I  do not think that it is open to Mr. Palkhivala to describe  the act as wanting in good faith without pleading any collateral fact.  Further it is not open to me to probe the reasons for a  decision by the President.  To begin with  under  Article 74(2)  the question, whether any and if so what, advice  was tendered  by  the  Ministers  to  the  President  cannot  be inquired  into  by any Court.  Again by Article  361(1)  the President  is not answerable to any Court for  the  exercise and  performance of the powers and duties of his  office  or for  any  act done or purporting to be done by  him  in  the exercise of those powers and duties 57 except  in  an investigation of a charge under  Article  61. All  that is saved is that appropriate  proceedings  against the  government of India can be taken.   Therefore,  whether the President acted rightly or wrongly in the matter may  be decided against the Government of India without  questioning the conduct of the President.  Therefore, the only  question

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open is whether the act of the President was ultra vires the Constitution.               The  question of ultra vires was put  thus  by               the petitioners               "  An executive exercise of power must  be  in               accordance with the Constitution under Article               53.  Article 362 says that the President  must               exercise  the  power with due  regard  to  the               guarantees  and assurances.  The President  in               his action has completely disregarded Articles               291 and 362 and by withdrawing the recognition               of  the  Princes  has acted  ultra  vires  the               Constitution.  Under Article 73 the  Executive               power  of the Union is co-terminous  with  the               law   making   power  of   Parliament.    When               Parliament refused to amend the  Constitution,               the President’s power did not extend that  far               by executive action.  By his executive act the               President has denuded articles 291 and 362  of               their  content  for ever.  The  President  was               required to recognise the Rulers and has  with               one  stroke withdrawn the recognition.  He  is               trying   to  do  indirectly  what   Parliament               refused to dot directly that is to say  remove               articles   291,362   and  366(22)   from   the               Constitution.   This has, been done without  a               hearing  to  the Rulers and is  in  breach  of               accepted  principles of natural justice.   The               rule  of law prevails and no  unconstitutional               act of any authority, unsupported by law,  can               avail(1).               The   action   is   not   only   against   the               Constitution but it also affects a large  body               of tax and other concessions.  Prominent among               them  are  Wealth  Tax Act  1957  Ss.2(p)  and               5(1)(iii),  Gift  Tax Act 1958  S.  5(1)(xiv),               Hindu Succession Act, 1956 S. 5(iii),  Income-               tax Act 1922 Section 4(3) (x); Income-tax  Act               1961 S. 10(19), Estate Duty Act 1953,  Section               33(1)(1); Part B States (Taxation Concessions)               Order  1950, Clause 15.  Sea Customs Act  1878               Section  23.   Freedom from  prosecutions  and               Civil  suits  to a certain extent  is  assured               respectively by the Code of Criminal Procedure               1898  S. 197A and the Code of Civil  Procedure               1908 S. 87A and 87B read with sections 85  and               86.    These  privileges  have   fallen   with               Rulership and it could not have been               (1)   [1967] 2 S.C.R. 454, 460.               58               intended  that  these laws would  be  rendered               nugatory  by  the expedient  of  removing  the               Princes." The power to withdraw recognition from a Ruler is claimed by the  Attorney General to be implicit in Article 366(22)  be- cause  it defines a Ruler in terms of recognition  ’for  the time being’ by the President.  It is also contented that the power  to recognise, itself includes the power  to  withdraw recognition.  It is, therefore, necessary to see how far the President can go on the words of the article.  The  critical words in the articles are ’for the time being.’ These  words show that the Ruler is a person, who, to be considered as  a Ruler  must, at any given moment of time, be  recognised  by the  President  whether he be the original  signatory  of  a Covenant  or  Agreement or his successor.   The  words  thus

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indicate that only one person at a time can be recognised as the  Ruler  of  a  State.  It also  shows  a  continuity  of succession so that an interregnum is avoided.  It does  show that Rulership cannot be permanent since the continuance  as Ruler depends upon the continuance of the recognition.   But the  definition neither expressly nor by implication  places the power in the hands of the President to say that although a Ruler was in existence or a successor was available  that, there  shall  be no Ruler of any particular State.   Such  a power  does not flow from the definition which  contemplates the  existence  of a Ruler for the time being.   The  phrase ’for  the  time being’ cannot mean that any  person  can  be appointed  who  has  no claim  whatever  or  that  temporary appointments  may  be made or that no  appointment  need  be made.   The  continuity  of a Ruler of an  Indian  State  is obligatory so long as the Ruler is alive or a successor can be found.  It may be that where the line becomes extinct (as happened  in some cases) or no suitable successor  could  be found that no Ruler need be recognised.  But where the Ruler exists  or  there  is  a suitable  successor  the  power  to recognise  a Ruler is implicit just as much as the power  to withdraw   recognition   in  suitable  cases.    The   Union Government   cannot  escape  this  obligation  by   invoking paramountcy  or  some  state  policy.   The  obligation   to recognise  a  Ruler is bound up with  the  other  guarantees contained  in  articles  291 and  362.   The  definition  in article  366(22)  is  merely the key to  find  a  particular Ruler.   The withdrawal of recognition from all  the  Rulers renders the guarantees as also the relevant articles of  the Constitution  inoperative.  It could never be the  intention of  the Constitution that by an Executive act the  operation of  those articles would come to a stop.  The action of  the President  has  the indirect effect not only  of  abrogating these  articles but also of rendering certain provisions  in the  Income-tax Act, Wealth Tax Act, the Gift Tax  Act,  the Codes  of  Civil and Criminal  Procedures  etc.,  completely otiose.  Executive action can never be allowed to have  that effect unless                              59 the power is explicitly conferred.  The intention of Article 366(22) is exactly the converse of what the Union Government understands it to be. The  answer of the first question is that the power  of  the President was wholly outside Article 366(22).  However  wide that power, it does not extend to withdrawing recognition of all  the  Rulers by a mid-night order.   The  President  was incompetent  to,  do  so and, therefore,  his  act  must  be treated  as  a  nullity.  This question  is  independent  of Article  363 and has no bearing upon: any Covenant etc.   It relates  only  to the power of the President  in  behalf  of recognition  of Rulers and withdrawal of  recognition.   The Court  is,  therefore,  free from Article  363  to  consider whether the act can be sustained or not.  That Article  only applies  to acts within the four comers of the  Article  and not to acts wholly outside.  I will show later how that  bar can operate on Article 366(22) when I consider Article  363. For the present I state my conclusion that having considered the  matter I am satisfied that the act must be declared  to be  ultra  vires  and a nullity.  This,  answers  the  first ground of attack in favour of the petitioners The question,, is  however,  reserved  for answer whether I  am  barred  by article 363. Before I consider the matter from the angle of the  Articles of the Constitution bearing upon the controversy and the bar of  Article  363 I wish to dispose of one, matter  which  is

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also, in a manner of speaking, a bar at the very  threshold. That  bar would arise if this is not a petition  coveted  by Article  32.   The petitioners seem to base their  claim  to relief on four grounds               (a)   That  the  order of the President  is  a               nullity;               (b)   that by the order of the President their               privy  puruses  are  stopped and  that  is  an               infringement articles 19(1)(f) and 31;               (c)   that  the  order also deprives  them  of               their privileges and some are property  rights               and some affect personal liberty; and               (d)   that  statutory  rights  under   certain               statutes   (already   mentioned   above)   are               destroyed  and they result in  deprivation  of               property through illegal taxes. It  is sufficient for this purpose to find out if any  right of property is involved.  The most outstanding effect of the order  is the deprivation of the Privy Purses.  These  Privy Purses  are charge on and paid out of the Consolidated  Fund of  India, free of all taxes on income (Art. 291).   If  the payments are obligatory and they L744Sup CI/71 60 can be regarded as property a petition under Article 32 will lie  as  the  action to deprive the Rulers  of  their  Privy Purses must be an infringement of Articles 19 and 3 1. Therefore,  I  need begin only with the  Privy  Purses,  the stoppage  of  which is the direct consequence of  the  order withdrawing  recognition.  A preliminary point arises  under article  19 whether the Rulers can be regarded as  citizens. I  have  assumed this so far as I cannot see  how  otherwise they  can  be described.  In H.H. the  Maharana  Sahib  Shri Bhagwat   Singh   Bahadur  of  Udaipur  v.  The   State   of Rajasthan(1) it is laid down that               "The    appellant   has   also,   since    the               Constitution, been a citizen of India, and his               recognition as Ruler under Art. 366(22) of the               Constitution  has not altered his status,  but               as  a  citizen  he is  undoubtedly  assured  a               privileged position." Therefore, the matter can be considered both under Article 1 9 and Article 3 1. In  two  cases  of the Court Madhaorao Phalka  v.  State  of Madhya  Bharat(2) and State of Madhya Pradesh  v.  Ranajirao Shinde and Anr.(3) pensions and cash grants were regarded as property.  The reason for the decision is not as fully given as the importance of the subject required and, therefore,  I permit myself to say a few words here. I  shall  show later that the obligation to  pay  the  Privy Purse to a Ruler is absolute and the right to claim it  when due  subsists  in each Ruler.  This is a  petition  for  the enforcement  of Fundamental Right to property and  therefore the  petitioners  must  show that a  right  to  property  is infringed or is in imminent danger of being threatened.  The learned Attorney General questioned the competency of  these petitions and the claim that property rights were  involved. According  to him the right is one to continue to receive  a payment  de futuro and no more.  A right to receive  payment is not, according to him, a right to property. The  attempt is to equate the periodic payments as being  in the  nature  of  payments of debts.  It is  said  that  this creates  a  right  in  personam and  not  a  right  in  rem. Therefore, there is enforcement of an obligation in personam but  not  a  right to reach property which can  be  said  to

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belong to the Rulers.  I do not accept the contention of the learned Attorney-General. (1) [1954] 5 S.C.R. 1, at page 6   (2) [1961] 1 S.C.R. 957                   (3) [1968] 3 S.C.R. 489 61 In his summary of the Law of Contract (p. 124) Langdell  re- marked   that  ’a  debt......  according  to   the   popular conception  of the term, is a sum of money belonging to  one person (the creditor), but in the possession of another (the debtor).    He   questioned   this   approach.    Blackstone contrasted property in possession and property in action and held contracts to be within the latter(1).  He was in effect thinking  of  a debt.  According to him property  in  action exists : "Where  a  man hath not the occupation, but  merely  a  bare right  to  occupy  the thing  in  question,  the  possession whereof  may, however, be, recovered by a suit or action  at law.........". He  was  of  opinion  that  till  then  the  thing  or   its equivalent,  remains in suspense, and the injured party  has only the right and not the occupation.  It being a thing  in potentia  and not in esse it is only a thing in  action  and not  possession.  Sohm (The Institutes) also says that  till the  fulfilment  of the obligations the creditor  has  right only against the debtor and not against a thing. This  old concept of property is no longer held to be  true. Mark by (2) regards the liability of the promisor as  itself a thing which is capable of being bought and sold,  assigned and  transferred  and  if  of money  value,  may  itself  be regarded as an object of ownership.  An obligation according to  him is as much a res as any other property and the  only difference  is  in  the mode  of  enjoyment.   The  creditor realizes this ownership by compelling the debtor to  perform his  obligation.   As illustration he gives a  catalogue  of passive  ’rights  of ownership.  Anson  (Principles  of  Law Contract) supports him by pointing out that an obligation is a right of control exercisable by one person over others for acts which have a money value. The dynamic theory of obligations regards a debt as a  claim to  ’an equivalent in a value to a floating  charge  against the  generality  of things which are the properties  of  the debtor’.  From this is developed the notion of a credit-debt where  property  rights  arise from a  promise,  express  or implied  in  respect of ascertained or  readily  ascertained sums  of  money.  Thus a debt or a liability  to  pay  money passes through four stages.  First there is a debt not  ’yet due.   The debt has not yet become a part of  the  obligor’s ’things’  because  no  net liability has  yet  arisen.   The second  stage is when the liability may have arisen  but  is not  either ascertained or admitted.  Here again the  amount due  has  not become a part of the  obligor’s  things.   The third stage is reached when the liabi- (1)  (See Commentaries Vol. II XXv pp. 396-398) (2) (Elements of Law 1871 6th Edition p. 320) 62 lity is both ascertained and admitted.  Then it is  property proper  of  the  debtor in the creditor’s  hands.   The  law begins to recognise such property in insolvency, in  dealing with it in fraud of creditors, fraudulent preference of  one creditor  against another, subrogation, equitable  estoppel, stoppage intransitu etc.  A credit-debt is then a debt fully provable and which is fixed and absolutely owing.  The  last stage is when the debt becomes a judgment debt by reason  of a   decree  of  a  Court.   Thus  an  American  Judge   held ’outstanding  uncollected accounts’ as  property.   Standard

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Marine  Insurance  Co.  v. Board  of  Assessors(1).   It  is because   of  this  that  the  French  Law   includes   such obligations in mobiles. Applying  these tests to the Privy Purses, it is clear  that they would be property.  As soon as an Appropriation Act  is passed   there   is  established  a  credit-debt   and   the outstanding Privy Purse becomes the property of the Ruler in the  hands  of  Government.  It is also a  sum  certain  and absolutely payable. The  learned Attorney-General however contends that  Article 291  which charges the Privy Purse on the Consolidated  Fund of  India,  to be paid to the Ruler, free of  all  taxes  on income  does  not  provide  that  it  shall  be  paid   and, therefore, the Article only lays down the source and  manner of payment but creates no right to claim, receive or enforce payment.   In my judgment this is a complete  misreading  of the Article. The  word  ’charged’, is a term of art.  In general  law  ’a charge’  creates  a pledge and also a priority  in  payment. The  word  also  denotes  in  Parliamentary  practice   non- votability.  The latter meaning distinguishes it from  those items which are payable indiscriminately from the same fund. The result of charging a sum on the Consolidated Fund is  to provide  that its destination shall not be altered  even  by vote   of  Parliament  and  the  charging  is   sufficiently effective  for  ensuring  the right  application.   It  also sometime,;  creates  priorities as in the  Constitutions  of some other countries.  In our Constitution numerous items of payment are charged on the Consolidated Fund but no priority inter.   se   is  established.   Yet   Article   291   makes the..........  amount payable to the Ruler  and,  therefore, creates  a  right  in him to demand it.  The  words  of  the Article are ’shall be charged on and paid out of etc’.   The article  makes  the  payment  obligatory.   The  words  when expanded read ’shall be charged on and shall be paid out  of etc’.  the direction to pay is in no uncertain  terms.   The article is thus self-ordaining.  The recipient is  mentioned in (b) where (1)  123 La 717, 720. 63 the  Article  says ’and the sums so paid to any  Ruler’  and this  shows  who is to be paid.  Therefore, the  article  in addition  to  the source and manner also lays down  that  it shall be paid and paid free of taxes on income to the Ruler. The  Article  thus not only creates a liability but  also  a right  in  the  Ruler.   It  is  self-supporting  and  self- ordaining. The  learned Attorney-General contends that  even  accepting all  this as a valid construction of the article 291 of  the Constitution,  the  petitioners must fail because  they  are seeking either to enforce the Covenants and Agreements or on seeking to enforce a provision of the Constitution  relating to such Covenants and Agreements.  The same argument is also raised in respect of articles 362 and   366(22).   According to him the petitioners stand excludedby   Article    363. This  is the crux of the case before us. The answer to  this question depends on the meaning to be attributed to the four article  in  question,  and determines  the  fate  of  these petitions. I  begin  with  article 363.  That  article  was  quoted  in extenso  earlier.   The learned  Attorney-General  used  the historical  events  as background for  his  contention  that Article  363 must be construed as giving an exclusive  right of  determination  to  the  President  on  the  subject   of recognition  and  withdrawal of recognition.   He  submitted

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that  just as an act of State cannot be  questioned  in  a Municipal Court so also the withdrawal of recognition cannot be  called  in  question.   He  cited  a  large  number   of authorities  in support of his case that an act of State  is not subject to the scrutiny of the Courts. The  question here is not one of an act of State.   Nor  can any  assurance be drawn from the doctrine of act  of  State. What  we  have to do is to construe the  article.   It  bars jurisdiction of Courts.  It, has no bearing upon the  rights of  the Rulers as such.  It neither increases.  nor  reduces those rights by an iota.  I shall presently attempt to  find out  its meaning.  Before I do so I must ,say that it  is  a well-known rule of interpretation of provisions barring  the jurisdiction  of  Civil Courts that they  must  be  strictly construed  for the exclusion of the jurisdiction of a  Civil Court,  and  least of- all the Supreme Court, is not  to  be lightly  inferred.   The  gist of  the  present  dispute  is whether  the  article  bars the relief  to  the  petitioners although as held by me, the order of the President is  ultra vires. The article commences with the opening words  ’notwithstand- ing  anything  in this  Constitution’.   These  exclusionary words   are  no  doubt  potent  enough  to   exclude   every consideration arising 64 from the other provisions of the Constitution including  the Chapter on Fundamental Rights, but for that reason alone  we must  determine  the scope of the  articles  strictly.   The article  goes  on  to say that jurisdiction  of  all  Courts including  the  Supreme  Court is  barred  except  that  the President  may consult the Supreme Court.  Having said  this the  articles  goes on to specify the matters on  which  the _jurisdiction  is barred.  This it does in two  parts.   The first part is : ’in any dispute arising out of any provision of  a treaty etc. which was entered into or executed  before the  commencement  of this Constitution by any Ruler  of  an Indian  State  to which the Government of  the  Dominion  of India  was  a party and which has or has been  continued  in operation  after  such  commencement’.  This  shows  that  a dispute  relating  to  the  enforcement,  interpretation  or breach  of  any  treaty  etc. is  barred  from  the  Courts’ jurisdiction.  The words ’arising out of the provisions,  of a treaty etc.’ limit the words.  Thus if a treaty,  covenant etc. is characterised as forged by any party, that would not be  a  dispute ,arising out of any provision  of  a  treaty, covenant  etc..  That dispute would be whether  there  is  a genuine treaty or not.  This illustration is given by me  to show  that the exclusion is not all-embracing.  The  dispute to  be barred must be arise from a provision of  the  treaty etc. The  second  part  .bars the Courts’  jurisdiction  ’in  any dispute  in  respect  of any right  accruing  under  or  any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty etc.’  Here the  dispute  must be in respect of a  right  which  accrues under  a provision of the Constitution or the  liability  or obligation must arise similarly from a provision.  The words ’provisions of this Constitution’ are not left  unqualified. They could not be left unqualified for then the latter  part would  have  barred  every dispute  from  the  Courts. The provisions had to be pointed out.  The article however  does not refer to any article by its number.  If the article  had said ’in any dispute in respect of any right accruing  under or  any  liability  or obligation arising  out  of  articles 291,362 and 366(22)’ all controversy in this case would have

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been  at an end.  But the article uses a  qualifying  phrase which does not name but describes the provisions.  A  search has, therefore, to be made with a view to determining  which provision  answers the description and which does  not.   In other  words, we have to satisfy- ourselves, before we  deny out jurisdiction, that of the articles 291,362,366(22) which one, or all of them answer the description.  The requirement is  that  the article must be a provision  ’relating  to’  a treaty  covenant etc.  I must therefore examine each of  the three  articles 291,362,366(22) to discover if all  of  them and, if not, which of them would fit in with those words. 65 The  learned  Attorney-General practically read  every  word through  some dictionary or other.  The words are  ’relating to.   They mean that the provisions must bear upon  treaties etc. as its dominant purpose or theme.  It is not sufficient if the treaties etc. are mentioned there for some collateral purpose.   During the course of arguments I  illustrated  my meaning  by referring to Article 102 which provides  that  a person  is disqualified if he is an  undischarged  insolvent ’and asked the question whether the provision could be  said to  be relating to ’membership’ or to ’insolvency’  and  got obvious  answer  that it is the former.  The  fact  that  it mentions ’insolvency’, ’insanity’ etc. does not make it  any other than a provision relating to membership of parliament. The dominant purpose and theme of the article is one and one only  and that has to be discovered before one can say  that it is ’relating to’ this or that.  A similar illustration is to  be found in article 105 (3) where a provision is  to  be found  relating to powers etc. of Indian Parliament and  not to  those of the House of Commons.  Therefore, in trying  to find  out  whether any provision is ‘relating to’  a  treaty etc. it is not enough to find a mention of treaty etc.  That may be for a subsidiary purpose, not sufficient to  qualifiy for consideration as the dominant theme.  It is the dominant purpose and theme which alone determines the quality of  the provision. I  shall now apply this test to article 291,362 and  366(22) beginning  with  article  362 since to my  mind  it  is  the plainest  of all and is definitely within  the  description. It  provide directly for the enforcement of  guarantees  and assurances by requiring Parliament, the Legislatures and the Executive  Governments of the Union and the States  to  have ’due  regard’  for  those guarantees  and  assurances.   The article  can  only  be used to support a  claim  to  rights, privileges and dignities.  Its dominant theme is the rights, privileges  and dignities of the Rulers under Covenants  and Agreements  and  therefore, the provision is  ’relating  to’ Covenants  and  Agreements.  The reference to  Article,  291 does  not influence the application of the test  to  Article 291 because that is merely a legislative device and does not tie the two Articles together.  It only saves repetition  of certain phrases already used in Article 291.  If Article 362 were  earlier  in  the Constitution the  phrase  would  have occurred in it and would have been referred to in the  other article.   Therefore  no conclusion can be drawn  from  this description in Article 362.  Therefore article 362 is one of the  provision  relating  to  a  treaty,  covenant  etc.   A litigant  invoking  its  aid really relies  on  a  provision relating to a Coveant etc. I  shall now consider Article 366(22).  That is only  a  de- finition  clause.   It is intended to point out who  is  the Ruler of 66 which State.  It does so by saying that a Ruler is a  person

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(a)  who  entered into a Covenant or  Agreement  before  the commencement of the Constitution and the payment of any  sum free  of tax  had  been  guaranteed  or  assured  by   the Government  of the Dominion of India as privy purse  or  (b) the  successor of such Ruler.  For purposes of (a) the  same repetition  is again avoided by the same legislative  device of  referring  to  article 291 for  brevity.   This  Article renders  the certainty of assumption of Rulership to  depend upon   recognition  and  that  recognition  is  worked   out primarily  under Covenants and Agreements.   The.  ,dominant and immediate purpose and application of the Article depends upon Covenants and Agreements.  I have earlier said that the President  in  recognising a Ruler or  withdrawing  his  re- cognition  does  not  act arbitrarily but in  the  light  of Covenants and Agreements.  All such instruments mention  law and custom of the family except the Bhopal Agreement where a local  statute  has  to be observed.   The  selection  of  a Ruler’s  successor  thus  has  to be  worked  out  under  a Covenant or Agreement.  The Article, therefore, has for  its dominant  purpose  the  selection  of  Rulers  through   the application  of  the Covenants and  Agreements.   After  the President  has  exercised  his  jurisdiction  and  power  to recognise  ,a  Ruler according to his understanding  of  the implications   of   a  ,Covenant  etc,  no  one   else   has jurisdiction  to enter upon the same question unless it  can be proved that the act was null and void in toto.  When  the President acts within the four corners of his authority  the matter  is barred by Article 363.  If this were not so  then the  recognition  of a Ruler or successor by  the  President would  be subject to further confirmation by the Courts  and that is not the meaning of article 366(22). During  the  course of arguments I pointed out that  if  the Maharja of Jhind were recognised as the Nizam of  Hyderabad, there  would  be no application of Article 366(22)  and  the action so wholly arbitrary as not to be protected by Article 363.   The answer was that the President would never do  so. But who would have thought in 1950 that recognition of.  all the Rulers would be withdrawn by a single order?  Therefore, extreme  examples are necessary to solve extreme  cases.   I have questioned the action of the President because the  bar of Article 363 does not operate.  Neither is the recognition of  an  original  signatory  of  a  Covenant  or   Agreement involved,  nor the recognition of a successor.  The  act  is not  even one which the Court leaves alone because the  dis- cretion  is  exercised  in  a manner and  to  the  extent  a President  in the proper discharge of his functions can  go. What is done is to take away recognition from all Rulers and as such power does not flow from Article 366(22), the bar of Article  363  does not apply to such a dispute.   It  arises neither from the Covenants etc.  67 nor from the ,provisions of the Constitution.  It ceases  to have the protection of Article 363. Article  363 immediately follows Article 362.  Although  not much significance can be attached to the collocation of  the articles, it is to be noticed that the exclusionary  article wants us to search for a provision relating to a treaty etc. before  staying  our hands.  It does leave the  matter  open when  it  could  have ruled out the mystery  by  naming  the articles  under which relief was to be barred.  By  applying the  test, I have indicated, the provision is located.   One such  provision is article 366(22) when the  President  acts within the discretion given by Covenants and Agreements. There  remains  Article 291 to consider.  That  article  was read and re-read before us.  Every word in that article  was

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commented  upon and dictionaries were consulted.  I  do  not propose  to refer to dictionaries at all.  The words of  the article  are plain enough to me and I have only to  discover its  dominant and immediate purpose or theme to say  whether it is a provision relating to Covenants or Agreements.   It, no doubt, begins by mentioning Covenants and Agreements  but that  is  not  all.   We cannot from  that  fact  alone  bar ourselves.  The relationship between the dominant purpose of the provision and the Covenants and Agreements still remains to be established and their involvement in the dispute  must be found.  In this connection we must ask the question :  Is this  provision in reality and substance a provision on  the subject  matter  of  Covenants and Agreements?   It  is  not enough  that it refers to the Covenants and Agreements.   It should  make  them  the  subject  matter  of  enactment  and decision. The  Article when carefully analysed leads to these  conclu- sions  :  The main and only purpose of the provision  is  to charge  Privy Purses on the Consolidated Fund of  India  and make  obligatory their payment free of taxes on income.   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 Constitution limits the  freedom  to taxes  on  income and creates a charge on  the  Consolidated Fund.   There  were  other  guarantees  as  in  the   Merger Agreements of Bilaspur and Bhopal (quoted earlier) which are ignored by the Article.  The guarantee of the Dominion  Gov- ernment is thus continued in a modified form.  The reference to  Covenants 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  Consolidated Fund 68 and  to make them free of taxes on income.  The argument  of the  learned  Attorney-General that it  indicates  only  the source  and manner of payment rather destroys the  case  for the  application  of article 363 than lends support  to  it. The  mention therein of Covenants and Agreements is for  its own  purpose so that the amounts need not be specified.   In this connection there is no difference between Art. 290A and 291  although the learned Attorney-General made much of  the mention  of the name of the Travancore Devasom Fund  in  the former and absence of the names of the Rulers in the latter, or again the mention of a specific sum in the former and  no sum in the latter.  The article is self sustaining and self- ordaining.   Its purpose is not relating to  Covenants  etc. but  to something else.  Article 291 differs  from  Articles 362  and 366(22) in this that the Privy Purses have  already been  settled  and one has not to enforce the  Covenants  at all.  One does not enforce the Covenants but the mandate  of the  Article itself.  Whenever the Privy Purse  is  modified under the terms of a Covenant, the Article is again invoked- ab extra.  That dispute isnot related to Article 291 and the bar of Article 363 operates. That matter is outside  the jurisdiction of Courts.  It is only when the Privy Purse  is a settled fact of which the Courts can take notice,  without having to construe the Covenants for itself that the bar  of Article  363 is avoided.  In that case the Article does  not answer the description of ’a dispute’ or of the latter  part of Article 363. My  conclusions on articles 291, 362, and 366(22)  are  that article  291  is not a provision relating to  Covenants  and

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Agreements but a special provision for the source of payment of  privy purses by charging them on the  Consolidated  Fund and for making the payment free of taxes on income.  It does not in its dominant purpose and theme answer the description in  the latter part of Article 363.  Article 362  is  within the  bar of Article 363 because its dominant purpose  is  to get  recognised  the Covenants and  Agreements  with  Rulers However,  in  so far as the same guarantees  find  place  in legislative measures the provisions of Article 362 need  not be  invoked  and the dispute decided on the basis  of  those statutes.   Such  a  case may not attract  article  362  and consequently  the  bar of Article 363 may  not  also  apply. Article  366(22)  is within the description so long  as  the President   in  recognising  a  Ruler  or  a  successor   is effectuating the provisions of a Covenant or Agreement.   It may apply when the discretion exercised is relatable to  his powers  flowing  from the Covenants read with  the  Article. However   where  the  President  acts  wholly  outside   the provisions  of Article 366(22) his action can be  questioned because  the bar applies to bona fide and legitimate  action and not to ultra vires actions. 69 The error in the case of the Union of India arises from cer- tain  circumstances.   The  first  is  to  think  that   the paramountcy  of  the Crown descended upon the  President  on Indian Government.  In that paramountcy the recognition of a Ruler was a gift from the Crown.  In view of the history  of integration   of   States  and  the:   provisions   of   the Constitution  in Articles 291, 362 and 366(22), there is  no paramountcy  left  at all, if paramountcy could at  all.  be exercised against citizens.  The only discretion left is  to select  a  suitable  successor to a  Ruler  and  perhaps  to withdraw   recognition  on  grounds  which  are  sound   and sufficient.   Whether  such. another kind of  withdrawal  of recognition may be equally capable of being questioned in  a Court  of  law,  is a matter on which I do  not  express  an opinion.   Therefore  the  President cannot  claim  a  total immunity  for  his  acts from the  scrutiny  of  the  Court. Neither  the paramountcy of the Grand Moghul who could  give Subehdarships  to his  Generals  as  he  pleased  nor  the paramountcy  of  the British Crown has descended to  him. This  eorror is further enhanced by too facile a reading  of Article 363.  Any tenuous connection between an Article  and the  Covenant  or Agreement, how-ever remote, is not  to  be considered  sufficient to make a provision fall  within  the description in the latter part of Article 363.  Due,  regard was  not paid to the fact that the draftman would  have  re- ferred to numbers of Articles if the disputes of every  kind under those article stood excluded. The  learned Attorney-General relied in particular  on  some cases  which  he  said  had  laid  down  that  the  act   of recognition is a political act, that it cannot be questioned before a Court of’ Law.  He also referred to cases in  which the  question of the application of article 363 had  arisen. My brother Hegde in his judgment has sufficiently considered them  and  I am in such agreement with him that  I  find  it unnecessary to repeat what he has said’ there.  I adopt  his reasoning. In conclusion I hold the orders of the President to be ultra vires  and declare them to be so.  In consequence a writ  of mandamus  shall  issue  not  to  enforce  the  orders.   The petitions are allowed with costs. Shah,  J.  On August 15, 1947,  Maharajadhiraja  Jivaji  Rao Scindia     of    Gwalior--hereinafter    called     ’Jivaji Rao’--executed  in instrument of accession stipulating  that

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the Governor-General of India, the Dominion Legislature, the Federal Court of India, and other Dominion authorities shall for the purpose of the Dominion, exercise in relation to the State of Gwalior, such functions as may be vested in them by the  Government of India Act, 1935, in respect  of  Defence, External  Affairs,  Communications  and  matters   ancillary thereto. 70 On  April  22, 1948, twenty heads of States  in  the  Madhya Bharat  region executed a covenant to form the United State of  Gwalior, Indore and Malwa.  The covenant guaranteed  to each  head  of  covenanting  State  payment  of  the  amount specified therein as his privy purse out of the revenues  of the  United State; to full ,ownership, use and enjoyment  of all  private  properties  belonging to him on  the  date  of making   over  the  administration  of  the  State  to   the Rajpramukh; to succession to the gaddi of the State  accord- ing  to  law  and custom; and to  all  personal  privileges, dignities  and titles enjoyed by him within and outside  the territories of his State immediately before the 15th day  of August, 1947. Five more States joined the United State of Gwalior,  Indore and  Malwa  (Madhya Bharat) with effect from July  1,  1948. On  .July  19, 1948, Jivaji Rao executed on  behalf  of  the United State of Gwalior, Indore and Malwa (Madhya Bharat)  a revised  instrument  of accession.  Pursuant to  the  merger agreements, it was proclaimed on November 24, 1949, that the United  State of .Madhya Bharat adopted the Constitution  of India  as  the  Constitution  of  the  United  State.    The Constitution of India was promulgated on November 26,  1949, and  was  brought into force (except  for  certain  articles specified in Art. 394) with effect from January 26, 1950. The President of India recognized Jivaji Rao as the Ruler of Gwalior.  The Government of India continued to pay the privy purse  and accoredd to him the privileges specified  in  the instrument  of  accession and the merger  agreement,  except those  which were modified by statutes.  After the death  of Jivaji  Rao the President recognized  Madhav  Rao-petitioner herein-as the Ruler of Gwalior. Under  the  Madhya Bharat Gangajali Fund  Trust  Act,  1954, enacted  by the State Legislature the Ruler of the State  of Gwalior  is one of the three trustees authorised  to  manage the  Gangajali  Fund settled by the State and to  apply  the income thereof for charitable purposes. On  September  2, 1970, a Bill intituled  the  Constitution. (Twenty   fourth  Amendment)  Bill,  1970,   and   providing that  ."Articles 291 and 362 of the Constitution and  clause (22) of Article 366 shall be omitted"- was introduced in the Lok Sabha.  The Bill was declared passed with the  amendment that the provisions thereof shall come into oporeation  with effect  from  October 15, 1970.  On September 5,  1970,  the motion for consideration of the Bill did not obtain, in  the Rajya  Sabha, the requisite majority of not less  than  two- thirds of the Members present and voting as required by Art. 368 of the Constitution.  The motion for 71 introduction  of  the Bill was declared lost.  A  few  hours there-after  the President of India purporting  to  exercise power  under  clause (22) of Art. 366  of  the  Constitution signed  an  instruments withdrawing recognition of  all  the Rulers.   A  communication to;, the effect  was  issued  "by Order and in the name of the President"’ was received by the petitioner stating that :               "In exercise of the powers vested in him under               Article  366(22)  of  the  Constitution,   the

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             President hereby directs that with effect from               the   date   of  this   Order   His   Highness               Maharajadhiraja Madhav Rao Jivaji Rao  Scindia               Bahadur do cease to be recognised as the Ruler               of Gwalior."               Similar orders were communicated to all  other               Rulers  in-,  India who  had  been  previously               recognized   under   Art.   366(22)   of   the               Constitution.               The  Union Finance Minister laid on the  table               of  the Rajya Sabha, on September 7,  1970,  a               statement, inter alia, that :               "........  Government  is  fortified  in   the               belief  that there is widespread,  support  in               the country for putting an end to an out-moded               and  antiquated  system  which  permitted  the               enjoyment of privileges and privy purses by  a               small  section  of  our  people  without   any               corresponding  social  obligations  on   their               part.               As  it has been Government’s  declared  policy               to. abolish these privileges and privy  purses               and also to put an end to the very concept  of               Rulership,  Government  felt  they  would   be               justified  in  de-recognising the  Rulers  and               thus  putting an end to a period of  political               and’ other uncertainties so undersirable in  a               matter of this nature.  Accordingly, President               has decided to derecognise all the Rulers  and               thereby  terminate  their  privy  purses   and               privileges with immediate effect.  Orders have               been issued in pursuance of the decision." Madhav  Rao Scindia moved a petition on September 11,  1970, in this Court under Art. 32 of the Constitution claiming-(a) a  declaration  that the order dated September 6,  1970  was "unconstitutional,  ultra  vires and void" and  a  direction quashing  that order; (b)a declaration that  the  petitioner continues  to be the Ruler of Gwalior and to be entitled  to privy purse and to, personal rights and privileges  accorded to  him as Ruler; and (c) a direction to the Union of  India to continue to pay the privy, 72 purse  and  to continue to recognise the Rulership  and  the personal  rights  and privileges of the petitioner  arid  to implement and observe the provisions of the covenant and the merger  agreement. He claimed that in making the order  the President acted without authority of law; that the order was made  for  collateral purpose; .and that by  the  order  the rights  guaranteed to the petitioner under Arts. 14, and  19 and 31 of the Constitution were infringed.  The petition was later  amended  with leave of the Court and it  was  claimed that the order infringed the guarantee under Art. 21 of  the Constitution also. The Union of India by their affidavit contended, inter alia, that the petition was not maintainable because the source of the right to receive the privy purse and to be accorded  the privileges  ,claimed was a political agrement and the  privy purse  was in the nature of a political pension;  that  Art. 291 did not impose any obligation upon the Union to pay  the privy purse; that Arts. 291 and 362 of the Constitution  did not  in-vest the petitioner and the other Rulers  with  any enforceable  rights;  that recognition of the  Rulers  under Art.  366(22)  was  a  "matter  of  State  policy"  and  the President was competent to pass the order dated September 6, 1970;  that the order was not made for a collateral  purpose

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as alleged; and that by the order the guarantee of Arts. 14, 19(1)(f), 31(1) or any other article of the Constitution was not infringed. By the order of-the President withdrawing his recognition as Ruler,  the  petitioner is denied the right  to  the  privy purse  and to the personal rights, privileges and  dignities accorded to him as a Ruler; he is also denied the benefit of the  exemption  from liability to pay  income-tax  under  s. 10(1a)  of the Income-tax Act, 1961; Wealth-tax under  s.  5 (1)  (iii) & (xiv) of the Wealth-tax Act,  1957;  Gift-tax under  s.  5(1)(xiv)  of  the Gift-tax,  1958;  and  of  the exemption  from liability to pay duty under the Sea  Customs Act,  1878, which remains operative under the  Customs  Act, 1961:  he is also deprived of the statutory protection  that he  shall  not be sued without the consent  of  the  Central Government under S. 87-B of the Code of  Civil  Procedure, 1908,  and  that cognizance of any offence alleged  to  have been  committed  by  him shall not be  taken  by  any  Court without the previous sanction under s. 197-A of the Code of Criminal   Procedure,   1898.   The petitioner   is   also disentitled  to  the management and  administration  of  the Gangajali Fund Trust. By his order dated August 22, 1961, the President recognised the petitioner as the Ruler of Gwalior.  If the order of the President  is  without authority of law, as  the  petitioner contends  it  is,  there  is a  clear  infringement  of  the guarantee of the fundamental rights under Arts. 19(1)  (f), 21 and 31 (1) of the Constitution. 73 It is unnecessary in the view we take, to deal with the plea raised  by Mr. Palkhivala that Rulership is  "property"  and the  order of the President deprives the petitioner of  that property without authority of law. Validity of the order of the President is challenged on  the grounds that-(1) the President has no power to withdraw  re- cognition  of a Ruler once recognised; (2) exercise  of  the power  to withdraw recognition, assuming that the  President has  such power, is coupled with the duty to  recognise  his successor and an order made without recognising a  successor is invalid; (3) the order of the President  "de-recognising" all  the Rulers en masse amounted to arbitrary  exercise  of power;  and  (4)  in any event, the order  was  made  for  a collateral  purpose, that is, to give effect to the  "policy of the Government" after the Government was unable to secure the requisite majority in the Parliament to the Constitution Amendment Bill.               Article 366(22) of the Constitution reads               "In  this  Constitution,  unless  the  context               otherwise requires, the following  expressions               have the meanings hereby respectively assigned               to them, that is to say-               (22)"Ruler"  in relation to an Indian  State               means  the  Prince, Chief or other  person  by               whom  any  such covenant or  agreement  as  is               referred  to in clause (1) of article 291  was               entered  into  and who for the time  being  is               recognised  by the President as the  Ruler  of               the State, and includes any person who for the               time  being is recognised by the President  as               the successor of such Ruler."               Clause  (15)  of Art. 366 defines  an  "Indian               State"  as  meaning "any territory  which  the               Government of the Dominion of India recognised               as such a State’.-" Article 291, as amended by               the  Constitution  (Seventh  Amendment)   Act,

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             1956, reads as follows:               "Where under any covenant or agreement entered               in by the Ruler of any Indian State before the               commencement of this Constitution, the payment               of any sums, free of tax, has been  guaranteed               or  assured by the Government of the  Dominion               of India to any Ruler of such State, as  privy               purse--               (a)   such  sums shall be charged on, an  paid               out of, the Consolidated Fund of India; and               (b)   the  sums so paid to the Ruler shall  be               exemept from all taxes on income." 74 The definition of "Ruler" in cl. (22) of Art. 366 is in  two parts : a person is a Ruler if he being (a) a Prince,  Chief or  other  person  who  had entered  into  the  covenant  or agreement  as is referred to in cl. (1) of Art. 291, is  for the time being recognised by the President as the Ruler;  or (b) if he is for the time being recognised by the  President as the successor of the Ruler mentioned in part (a). Use of the  expression  "for  the time being" in  relation  to  the persons who had entered into covenants or agreements, and in relation  to  the  successor, may  perhaps  imply  that  the President has the power inappropriate cases and for adequate reasons  to  withdraw recognition, but that is a  matter  on which it is unnecessary for the purpose of this petition  to express any final opinion Granting  that the President may withdraw recognition  of  a Ruler  once granted, the power conferred by Art. 366(22)  is exercisable  only  for  good  cause,  i.e.  because  of  any personal  disqualifications  incurred by a  Ruler.   By  the provisions  enacted  in Arts. 366(22), 291 and  362  of  the Constitution  the privileges of Rulers are made an  integral part  of  the  constitutional scheme.  Thereby  a  class  of citizens  are,  for  historical  reasons,  accorded  special privileges.   They cannot be derprived of  those  privileges arbitrarily,.  for  the foundation of  our  Constitution  is firmly laid in the Rule of Law and no instrumentality of the Union, not even the President as the head of the  Executive, is invested with arbitrary authority. In  the  affidavit on behalf of the Union of  India  it  was averred that "the concept of Rulership, the privy purse  and the   privileges   without   any   relatable   function   or responsibility  have  become  incompatible  with  democracy, equality  and  social  justice in the context  of  India  of today"; and that since "the commencement of the Constitution many  things  have  changed,  many  hereditary  rights   and unearned income have been restricted and many privileges and vested interests have been done away with and many laws have been passed with the object of checking the concentration of economic power-both rural and industrial, the Union of India have decided that the concept of Rulership, the privy  purse and  the  privileges  should  be  abolished."  Thereby   the executive  arrogates  to  itself power  which  it  does  not possess : our Constitution does not invest the power claimed in the executive branch of the Union. The plea that in recognising or "de-recognising" a person as a Ruler, the President exercises "political power  which is a sovereign power and that after an order of  de-recognition "no  erstwhile  Ruler  can make a claim in  respect  of  the Rulership or the privy purse or any of the privileges’ since the relevant covenants under which the rights of the  Rulers were recognised were 75 "  political  agreements"  and the  rights  and  obligations

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thereunder  were  liable  to  be  varied  or  repudiated  in accordance  with  "State  policy" in the  interests  of  the people  also receives no countenance from our  Constitution. The  first branch of the argument is inconsistent  with  the basic  concept under our Constitution of division  of  State functions;  the second is inconsistent with the  history  of events between 1947 and 1949, and the third receives, for  reasons  to be presently stated, no support  from  the. relevant constitutional provisions. Whether  the  Parliament may by a  constitutional  amendment abolish the rights and privileges accorded to the Rulers  is not,  and cannot be, debated in this petition, for  no  such constitutional  amendment  has been  made.   The  petitioner challenges  the  authority  of the  President  by  an  order purporting  to  be  made  under  Art.  366(22)  to  withdraw recognition  of Rulers so as to deprive them of  the  rights and privileges to which they are entitled by virtue of their status as Rulers.  The  functions of the State are classified as  legislative, judicial  and  executive  : the executive  function  is  the residue which does not fall within the other two  functions. Constitutional  mechanism  in a democratic policy  does  not contemplate  existence  of any function which  may  qua  the citizens  be  designated  as political and  orders  made  in exercise  whereof  are  not liable to be  tested  for  their validity before the lawfully constituted courts : Rai  Sahib Ram   Jawaya  Kapur  and  Others  v.  State  of   Punjab;(1) Jayantilal Amritlal Shodhan v. F. N. Rana;(1) and Halsbury’s Laws  of  England  3rd Edn., Vol. 7, Art. 409,  at  p.  192. Observations  made in two judgments of this Court, on  which the Attorney-General relied, do not support a contrary view. In Nawab Usman Ali Khan v. Sagarmal(3) this Court held, that the amount payable to the Ruler of Jaora "on account of  the privy purse" was exempt from attachment in execution of  the decree  Civil  Court, because it was a  "political  pension" within  the  meaning of s. 60 (1) (g) of the Code  of  Civil Procedure.  The Court in determining the true nature of  the privy  purse,  characterised  the sanction  for  payment  as "political and not legal".  That has, however, no bearing on the  question  in issue here.  In Kunvar Shri  Vir  Rajendra Singh v. Union of India and Others (4) this Court  negatived the  claim  of an applicant that his right to  property  was violated because the President accepted another claimant  to the gaddi of Dholpur as Ruler.  The Court observed that  the recognition  of Rulership by the President, in  exercise  of his  political power, did not amount to recognition  of  any right to private properties of the Ruler.  The Court (1) [1955] 2 S.C.R. 225         (2) [1964] 5 S. C.R. 294 (3) [1965] 3 S.C.R. 201        (4) [1970] 2 S.C.R. 631 --744Sup.CI/71 76 did   ’not   attempt  to  classify  the  exercise   of   the Presidential  function under Art. 366(22) as  distinct  from executive functions: that is clear from the dictum that  the exercise of the President’s power was "an instance of purely executive function". The history of negotiations which culminated in the integra- tion  of the territories of the Princely States  before  the commencement of the Constitution clearly indicates that  the recognition of the status of the Rulers and their rights was not  temporary,  and  also  not  liable  to  be  varied   or repudiated in accordance with "State policy".  Power of  the President   to  determine  the  status  of  the  Rulers   by cancelling,or  withdrawing  recognition  to  effectuate  the policy of the Government to abolish the concept of Rulership

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is therefore liable to be challenged in these petitions. The  circumstances  in which the  constitutional  provisions under cls. (15) and (22) of Art. 366, and Arts. 291 and  362 were incorporated may be briefly set out. In  the  era  before  1947 the term  "State"  applied  to  a political  community  occupying  a  territory  in  India  of defined  boundaries  and,  subject to  a  single  Ruler  who enjoyed  or  exercised,  as belonging to  him,  any  of  the functions  and  attributes  of  internal  sovereignty   duly recognised by the British Crown.  There were-, in India more than  560  States  : forty out of those  States  had  treaty relations  with  the Paramount Power : a  larger  number  of States  had  some  form of engagements or  sanads,  and  the remaining  enjoyed in one or the other form ’recognition  of their   status   by  the  British  Crown.     The   treaties, engagements and sanads covered a wide field, and the  rights and   obligations  of  the  States  arising  out  of   those agreements varied from State to State.  The rights that  the British  Crown as the Paramount Power exercised in  relation to the States covered authority in matters external as  well as  internal.  The States had no international  personality, the Paramount Power had exclusive authority to make peace or war,  or  to negotiate or communicate with  foreign  States. The  Paramount  Power  had  the  right  of  intervention  in internal affairs which could be exercised for the benefit of the  head  of the state of India as a whole, or  for  giving effect to international commitments. The Government of India Act, 1935, was a step in the  direc- tion  of  achieving a political unity over the  entire  sub- continent  :  it  envisaged  a  constitutional  relationship between the Indian States and Provinces in British India  on a  federal basis.  But the concept of a loose federation  of disparate constituent units in which the power and authority of  the  Federation were to differ between  one  constituent unit   and   another  was  soon  abandoned   as   inherently impracticable.  The Second World War awakened 77 a  new  consciousness  which  regarded  colonialism  as   an anachronism.   With  the object of transferring power  to  a Dominion,  several  schemes  were  evolved  by  the  British authorities  from time to time.  There was the Cripps  Plan, followed  by the Simla Conference of 1945, and  the  Cabinet Mission  Plan  of  1946.   The  Cabinet  Mission  issued   a Memorandum  dated  May 12, 1946, in regard  to  the  States’ Treaties and to Paramountcy : it affirmed that the rights of the  States  which flowed from their relationship  with  the Crown  will no longer exist and that the rights  surrendered by  the  States to the Paramount Power will  revert  to  the States.  The void caused by the lapse of paramountcy, it was said,  may  be filled either by the States entering  into  a federal  relationship,  with  the  successor  Government  or Governments  in  British  India,  or  by  entering  into   a particular  arrangements with it or them.  On May 16,  1946, the Cabinet Mission announced its Plan for the entry of  the States   into   the   proposed   Union   of   India.    They simultaneously declared that the paramountcy of the  British Crown  could  not  be retained nor transferred  to  the  new Government. The  British Parliament decided to set up the two  Dominions of India and Pakistan, and promulgated on July 18, 1947, the Indian Independence Act, 1947.  By s. 1, two new independent Dominions  of India and Pakistan were set up as from  August 15, 1947, and s. 7 of the Act provided :               "(1) As from the appointed day-               (a)   His  Majesty’s Government in the  United

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             Kingdom have no responsibility as respects the               government  of any of the territories  which,               immediately before that day, were included  in               British India;               (b)   the  suzerainty of His Majesty over  the               Indian   States  lapses,  and  with  it,   all               treaties  and agreements in force at the  date               of the passing of this Act between His Majesty               and   the   rulers  of  Indian   States,   all               obligations  of  His Majesty  at  that,  date,               towards  Indian States or the  rulers  thereof               and all powers, rights, authority or jurisdic-               tion  exercisable by His Majesty at that  date               in or in relation to Indian States by  treaty,               grant, usage, suffrance or other-wise; and               "Provided  that, notwithstanding  anything  in               paragraph  (b)  or paragraph (c) of  the  sub-               section,  effect  shall, as nearly as  may  be               continued to be given to               78               the  provisions  of any such agreement  as  is               therein  referred to which relate to  Customs,               transit   and   communications,   posts    and               telegraphs,  or other like matters, until  the               provisions  in question are denounced  by  the               ruler  of  the Indian State or  person  having               ,authority  in  the tribal areas  on  the  one               hand, or by the Dominion or Province or  other               part thereof concerned on the, other hand,  or               are superseded by subsequent agreements,               (2)The  assent  of the  Parliament  of  the               United   Kingdom  is  hereby.  given  to   the               omission  from the Royal Style and  Titles  of               the  words  "Indiae Imperator" and  the  words               "Emperor  of India", and to the issue  by  His               Majesty   for  that  purpose  of   His   Royal               Proclamation  under  the Great,  Seal  of  the               Realm." By the Indian (Provisional Constitution) Order, 1947, ss.  5 & 6 of the Government of India Act, 1935,. were  extensively amended,  setting  up  machinery for the  Indian  States  to accede to the Dominion of India.  Promulgation of the Indian Independence  Act  generated great political  activity.   On July  5, 1947, Sardar Vallabhbhai Patel, Minister  for  Home Affairs,  made  a  statement  defining  the  policy  of  the Government  of India, and inviting the Princes to accede  to the Dominion on three subjects-Defence, Foreign Affairs  and Communications, in which the common interests of the country were  involved.  He assured the Princes that the  policy  of the States Department (which had been set up in place of the Political Department) was not to conduct the relations with the  States in a manner savouring of domination of one  over the  other; the domination, if any, would be the  domination of mutual interests and welfare.  He expressed the hope that the  Princes  would  bear in mind that  the  alternative  to cooperation  in the general interest was anarchy  and  chaos which  would overwhelm the great as well as the small in  a common ruin, if the States and Provinces were unable to  act together in the minimum of common tasks.  On July 25,  1947, at  a special meeting of the Princes, Lord  Mountbatten--the Crown representative--advised. the princes to accede to  the appropriate  Dominion  in regard to the  three  subjects  of Defence,  External Affairs and Communications,  and  assured them that their accession on those subjects would involve no financial  liability and in other matters there would be  no

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encroachment on their internal sovereignty. The  plea  for  accession met with  a  favourable  response. Negotiations for accession of the States were soon completed and instruments, of accession were executed by the heads  of the  Indian States.  Simultaneously, Standstill  Agreements, the 79 acceptance  of which was made by the Government of  India  a condition  of accession by the States concerned,  were  also entered  into  between  the  Dominion  Government  and   the acceding States.  The Standstill Agreements recited : "Whereas it is to the benefit and advantage of the  Dominion of  India  as  well as of the Indian  States  that  existing agreements and administrative arrangements in the matters of common  concern, should continue for the time being  between the  Dominion  of India or any part thereof and  the  Indian States : Now  therefore  it  is  agreed between  the  State  and  the Dominion of India that:-               "1.  (1) Until new agreements in  this  behalf               are  made, all agreements  and  administrative               arrangements  as to matters of common  concern               now existing between the Crown and any  Indian               State  shall, insofar as may  be  appropriate,               continue as between the Dominion of India, or,               as the case may be, the part thereof, and  the               State.               (2)   In  particular, and  without  derogation               from the generality of sub-clause (1) of  this               clause  the  matters referred to  above  shall               include the matters specified in the  Schedule               to this Agreement.               3.Nothing  in this agreement includes  the               exercise of any paramountcy functions." By  the  instruments of accession the Princes  were  assured that  the terms of the instrument will not be varied by  any amendment  of  the  Government of India Act,  1935,  or  the Indian,  Independence  Act, 1947, unless such  amendment  be accepted  by the Prince by a supplementary instrument;  that nothing  in  the instrument shall be deemed  to  commit  the Prince in any way 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  Constitution,  and that nothing  in  the  instrument shall  affect the continuance of the Princes sovereignty  in and  over  the State, or, save as provided by or  under  the instrument, the exercise of any powers, authority and rights enjoyed  by the Prince as head of the State or the  validity of any law in force in the State. 80 This  was a significant step in the direction of  forging  a vital ,constitutional link between the Dominion of India and the  States.  It was followed by the next phase  culminating in   integration  of  some  States  in  the   Provinces,   , consolidation  of other States into  sizable  administrative units,   and   some  other   States   executing   agreements integrating  with the Dominion.  The process of  integration of States varied from State to State. 216 out of the States merged  with  the existing Provinces; 61 States  were  taken over  as Centrally administered areas; and 275  States  were integrated  in  five Unions of  States,  Saurashtra,  Madhya Bharat,  Rajasthan, Pepsu and Travancore-Cochin.  Merger  of the States with the Provinces was achieved initially in name only,  because  the  authority--executive,  legislative  and judicial-was  still  exercised  under  the  Extra-Provincial

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Jurisdiction  Act by the Provinces within which  the  States were initially merged.  The merger agreements of the  Unions of   States   were   to   operate   as   their   provisional Constitutions.   Even the Centrally administered  areas  did not become part of the Dominion territory. The  instruments of merger provided for the  integration  of States  and  for  transfer of power  from  the  Princes  and guaranteed to the Princes the privy purse, succession to the gaddi,  rights and privileges, and full ownership,  use  and enjoyment  of  all private properties belonging to  them  as distinct   from   State  properties.   The   covenants   for establishing  Unions of States and the agreements of  merger contained  provisions  guaranteeing to the heads  of  merged States or integrated States payment of privy purses.   These instruments   were  concurred  in  and  guaranteed  by   the Government of the Dominion of India. The next phase was of assimilation and consolidation of  the unity achieved till then.  In the case of the  "Provincially merged"  and "Centrally administered" States, authority  for exercising  the  powers of  administration  and  legislation originally  derived from the Extra-Provincial,  Jurisdiction Act, 1947, was later exercisable by virtue of orders  issued under  ss. 290A and 290B incorporated in the  Government  of India  Act, 1935, with effect from January 15, 1949.  By  an order  issued  under S. 290A diverse steps  were  taken  for integration of the former State into the Provinces. TO  ensure  an  organic unity of  India,  the  Princes  were invited  to accede to the Dominion, and later  to  integrate with  India under a Constitution with a Republican  form  of Government.  The Princes, some out of patriotism and  others from   motives  of  selfinterest,  agreed  to  merge   their territories and to abandon all authority in regard to  their territories in consideration of certain special concessions. To  give constitutional sanction to the  merger  agreements, special provisions were expressly incorporated in the 81 draft  Constitution recognising the status of  the  Princes, the  obligation  to pay the privy purse,  and  the  personal rights and privileges guaranteed to them- The territories of the States after integration retained no political or  legal identity.   Special recognition was given to the  status  of the  Princes and to their rights and the obligations of  the Union, and for that purpose, Arts. 366(15), 366(22), 291 and 362 were incorporated in the Constitution.  In Art.  366(15) the  expression.  "Indian State" was defined as meaning  any territory  which  the Government of the  Dominion  of  India recognised  as such a State; and in Art. 366(22)  a  special definition  of  the expression "Ruler" was evolved  for  the purpose of the Constitution; by Art. 291 the privy purse was charged  on, and made payable out of, the Consolidated  Fund of  India, and .the sum so paid as privy purse to the  Ruler was  declared exempt from all taxes on income.  By Art.  362 the Parliament, the State Legislatures and the executive  of the  Union and the States were enjoined to have "due  regard to  the guarantees and assurances" under the  covenants  and agreements  between the Government of the Dominion of  India and the heads of the former Indian States. The stage was then set for the promulgation of the Constitu- tion.  A few days before November 26, 1949, a large majority of the States proclaimed that the Constitution of India will be  the Constitution for their respective  territories,  and shall be enforced as such in accordance with its provisions, and that the provisions of that Constitution shall, as  from the  date  of its commencement, supersede and  abrogate  all other   existing  constitutional   provisions   inconsistent

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therewith.   Merger agreements were executed to give  effect to the proclamations.  The proclamation and the execution of the merger agreements resulted in complete extinction of the States and Unions of States as separate units.  The  Princes ceased to retain any vestigage of sovereign rights or autho- rity  qua their former States.  They acquired the status  of citizens of India. The plea raised by the Union must be considered in the light of  these  developments.  The negotiations,  the  assurances given  by leading statesmen, and the terms of the  covenants and agreements were certainly not intended to be an exercise in   futility.   The  argument  that  the  parties  to   the instruments were entering into solemn undertakings intending the  arrangements to be temporary, and liable to be  set  at naught by the unilateral act of the Union of India, must  be rejected. In form Art. 366(22) is a definition clause : It however in- vests the President with authority to recognize a person  as a Ruler.  Granting that under Art. 366(22) the President may withdraw  the recognition of a person as a Ruler, the  power to nullify important provisions of the Constitution does not flow from that clause. 82 The plea raised by the Attorney-General that recognition  of Rulership was a "gift of the President" or was "in the  gift of  the President" is not borne out by the position  of  and the  nature  of the powers and functions  of  the  President under  our constitutional scheme.  President is made by  the Constitution  repository  of  the  power  to  recognise  the Rulers.  That power may be, exercised consistently with  and in   aid  of  the  constitutional  scheme.    A   democratic Constitution  founded in the Rule of Law does  not  envisage authority in any instrumentality of the Union reminiscent of autocracy.  The power to recognise a Ruler may be  exercised in the case of first recognition only in favour of a  person who has signed the covenant, and in favour of his  successor having regard to the custom and laws governing the State  if the  Ruler dies, or becomes incapable of functioning or  his recognition is withdrawn.  By the use of the expression "for the time being" in cl. (22) of Art. 366 the President is not invested with authority to accord a temporary recognition to a  Ruler,  nor  :with  authority  to  recognise  or  not  to recognise a Ruler arbitrarily : the expression "for the time being" predicates that there shall be a Ruler of the  Indian State, that if the first recognised Ruler dies, or ceases to be a ’Ruler, a successor shall be appointed, and that  there shall not be more Rulers than one at a given time. By express, injunction in Art. 53(1) of the Constitution the executive  power vested in the President is directed  to  be exercised  "  in accordance with  the  Constitution".   That power  is  intended  to be exercised in aid of  and  not  to destroy constitutional institutions.  Granting that power to recognise  a  Ruler carries with it the  power  to  withdraw recognition  of the Ruler, the power must be exercised  bona fide, and in the larger interest of the people  consistently with  the  provisions of the Constitution  to  maintain  the institution of Rulership.  Power may therefore be  exercised in  the  course of and for recognising another person  as  a successor  to  the  Ruler, having regard  to  the  laws  and customs governing the State.  The President is not competent to  recognise a person as a Ruler who is not by  the  custom and laws governing succession to Rulership qualified to be a Ruler.  The President cannot obviously withdraw  recognition of  a  Ruler  and recognise another person as  a  matter  of political  patronage.  Nor can be lawfully depart  from  the

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laws  and customs governing succession so as to introduce  a person as  a  Ruler  who’  is not  by  ties  of  blood  or affiliation  related  to  the previous  Ruler.   Whether  in certain  exceptional  circumstances  the  President  may  in granting  recognition  to a successor depart in  the  larger interest  of  the  country from the strict  rule  or  custom governing succession to the gaddi, is a question which  need not  be  decided.  But unquestionably the President  is  not invested with authority to recognize a stranger as successor to  the  gaddi, or not to recognise any person at all  as  a successor 83 if  he  so chooses.  The power of the President  is  plainly coupled  with a duty; a duty to maintain the  constitutional institution,    the    constitutional    provisions,     the constitutional scheme, and the sanctity of solemn agreements entered  into  by the predecessor of  the  Union  Government which  are  accepted,  recognised and  incorporated  in  the Constitution.   An  order merely  "de-recognising"  a  Ruler without  providing  for continuation of the  institution  of Rulership  which is an integral part of  the  constitutional scheme is, therefore, plainly illegal. Clause (22) of Art. 366 is intended to invest the  President with  authority  to recognise Rulers : see Kunvar  Shri  Vir Rajendra   Singh   v.  Union  of   India(").    The   clause incorporates  the  history of momentous  events  which  took place  in  India  between 1947 and 1949  leaving  a  lasting impression  upon our national and constitutional  structure. Articles 291, 362 and Part VII of the Constitution were when incorporated  intended  to grant recognition to  the  solemn promises  on the strength of which the former  Princes  were invited  by  those  at  the helm  of  affairs  to  join  the experiment  for  achieving for the millions their  dream  of securing  a truly democratic form of Government in a  united independent India, and clauses (15) & (22) of Art. 366  were intended to serve the purpose of identifying the persons who remained  entitled to the benefits of  those  constitutional guarantees. A  brief  reference  may be made to what  was  said  in  the Constituent  Assembly by the Minister for Home Affairs  who was in charge of the States when he moved for adoption  Art. 291.  He used memorable words :               "These  guarantees  (merger  agreements)  form               part   of  the  historic   settlements   which               enshrine in them the consummation of the great               ideal of geographical, political and  economic               unification  of  India,  an  ideal  which  for               centuries remained a distinct dream and  which               appeared   as  remote  and  as  difficult   of               attainment  as ever even after the  advent  of               Indian independence.               Human  memory is proverbially short.   Meeting               in  October,  1949, we are apt to  forget  the               magnitude  of the problem which confronted  us               in August, 1947. ...... the so-called lapse of               paramountcy  was a part of the Plan  announced               on  June  3, 1947, which was accepted  by  the               Congress.   We agreed to this  arrangement  in               the same manner as we agreed to the  partition               of  India.  We accepted it because we  had  no               option  to  act otherwise.   While  there  was               recognition in the               (1)[1970] 2 S.C.R. 631               84               various    announcements   of   the    British

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             Government  of the fundamental fact that  each               State  should  link up its  future  with  that               Dominion  with  which  it  was  geographically               contiguous,  the Indian Independence  Act  re-               leased  the States from all their  obligations               to  the  British  Crown.   In  their   various               authoritative   pronouncements,  the   British               spokesmen  recognised that with the  lapse  of               paramountcy,   technically  and  legally   the               States   would   become   independent      The               situation was indeed fraught with immeasurable               potentialities of disruption, for some of  the               Rulers  did wish to exercise  their  technical               right  to declare independence and  others  to               join the neighbouring Dominion.               (c)               It  was against this unpropritious  background               that  the  Government  of  India  invited  the               Rulers  of  the  States  to  accede  on  three               subjects  of  Defence,  External  Affairs  and               Communications.  At the time the proposal  was               put  forward to the Rulers, an  assurance  was               given  to  them  that they  would  retain  the               status  quo  except  for  accession  on  these               subjects.  It had been made clear to them that               there  was no intention either to encroach  on               the  internal autonomy or the  sovereignty  of               the  States or to fetter their  discretion  in               respect   of  their  acceptance  of  the   new               Constitution of India.  These commitments  had               to  be borne in mind when the States  Ministry               approached  the Rulers for the integration  of               their States.  There was nothing to compel  or               induce  the  Rulers to merge the  identity  of               their States.  Any use of force would have not               only been against our professed principles but               would have also caused serious  repercussions.               The  minimum which we could offer to  them  as               quid  pro  quo for parting with  their  ruling               powers  was to guarantee to them privy  purses               and  certain  privileges on a  reasonable  and               defined  basis.  The privy  purse  settlements               are  therefore in the nature of  consideration               for  the surrender by the Rulers of all  their               ruling powers and also for the dissolution  of               the States as separate units               "The Rulers have now discharged their part  of               the  obligations  by transferring  all  ruling               powers  and by agreeing to the integration  of               their States.  The main part of our obligation               under these agreements, is to ensure that  the               guarantees  given  by us in respect  of  privy               purse               85               are  fully implemented.  Our failure to do  so               would  be  a  breach of  faith  and  seriously               prejudice the stabilisation of the new order." In the larger interest of achieving the unity of the country our  statesmen  chose  to appeal to the  patriotism  of  the Princes and not to rely upon the force of arms or methods of political  agitation  within the States.  Negotiation  of  a friendly settlement was in the circumstances then prevailing the only advisable course.  A discontented group of  Princes was  a  serious threat to a smooth and  orderly  transition. The   Constituent  Assembly  resolved  to  honour,   without

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reservation,  the promises made to the Princes from time  to time.   Clauses  in the draft Constitution relating  to  the obligation  of  the  Union  to  pay  the  privy  purses  and recognising  certain rights, privileges and  dignities  till then enjoyed by the Princes, were intended to incorporate  a just  quid pro quo for surrender by them of their  authority and powers and dissolution of their States. A legislative mechanism was devised to grant the benefit  to the  former  Princes by making a provision  for  recognising them as Rulers, and of incorporating in the Constitution the guarantees  of  the  privy purse  and  personal  rights  and privileges.  The former Princes were accordingly  recognised as  a class of citizens with special privileges  granted  to them  because they had surrendered their powers;  privileges and  authority.     The argument that the President  as  the head  of  the Executive may, in exercise of   his  executive power, destroy that institution, is plainly contrary to  the fundamental concept of the Rule of Law. There  are  many analogous provisions  in  the  Constitution which confer upon the President a power coupled with a duty. We  may  refer to two such provisions.   The  President  has under  Arts.  341 and 342 to specify  Scheduled  Castes  and Scheduled  Tribes;  and he has done  so.   Specification  so made-  carries for the members of the Scheduled  Castes  and Scheduled Tribes certain special benefits, e.g., reservation of  seats  in  the House of the People,  and  in  the  State Legislative  Assemblies  by Arts. 330 and 332,  and  of  the numerous  provisions  made in Schedules V & VI.  It  may  be noticed  that  expressions Scheduled  Castes  and  Scheduled Tribes  are  specially  defined  for  the  purposes  of  the Constitution  by  Arts. 366(24) and 366(25).   If  power  to declare   certain  classes  of  citizens  as  belonging   to Scheduled  Castes  and Scheduled Tribes  includes  power  to withdraw   declaration   without   substituting   a    fresh declaration,   the   President  will   be   destroying   the constitutional scheme.  The power to specify may carry  with it  the, power to withdraw specification, but it is  coupled with,,  a  duty  to  specify in a  manner  which  makes  the constitutional provisions operative. 86 Article  366(21) before it was deleted by  the  Constitution (Seventh Amendment) Act, 1956, defined "Rajpramukh" as mean- ing :-               (a)in  relation to the State of  Hyderabad,               the   person  who  for  the  time   being   is               recognised  by the President as the  Nizam  of               Hyderabad;               (b)in  relation to the State of  Jammu  and               Kashmir,  or the State of Mysore,  the  person               who  for the time being is recognized  by  the               President as the Maharaja of that State; and               (c)in relation to any other State specified               in  Part B of the First Schedule,  the  person               who  for the time being is recognised  by  the               President as the Rajpramukh of that State, and               includes in relation to any of the said States               any  person for the time being  recognised  by               the  President  as competent to  exercise  the               powers  of the Rajpramukh in relation to  that               State;" The first two clauses contemplated recognition of the  Nizam of  Hyderabad  and the Maharajas of Jammu & Kashmir  and  of Mysore  to be the Rajpramukh.  There can be no dispute  that the  Ruler  of Hyderabad was the Nizam, and  the  Rulers  of Jammu  and  Kashmir and Mysore were the Maharajas  of  those

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States.   Assuming that power to recognise a person  as  the Nizam  or Maharaja may carry with it the power  to  withdraw recognition,  if  carried with it a duty  to  recognize  the successor.     If   no   successor   was   recognized    the constitutional  scheme, of administration of Part  B  States would  be  destroyed.  Such a result could never  have  been contemplated. By  Art. 291 payment of any sum, free of tax  guaranteed  or assured  under any covenant or agreement with a Ruler of  an Indian  State  as  privy purse, is charged on  and  is  made payable  out of the Consolidated Fund of India, and the  sum so  paid  to any Ruler is exempt from all taxes  on  income. The  Attorney-General said that the recognition by Art.  291 of the existence of the guarantees and assurances under  the covenants and agreements gives rise to no obligation to  pay the privy purse, that, even if the constitutional provisions raise an obligation of the Union, they do not raise  corres- ponding  rights  in  the  Rulers;  that  in  any  event  the covenants being acts of State violation of their terms  will not  because  of Art. 363, first limb and  also  on  general principles  of law found an action in the Municipal  Courts. He  finally submitted that the dispute with respect  to  the rights claimed to accrue in favour of the Rulers arises  out of  the  provisions  of the  Constitution  relating  to  the covenants and on that account the jurisdiction of the Courts is excluded in regard to that dispute. 87 The  Constitution  in  terms  recognizes  and  accepts   the obligation  of  the  Union to, pay the privy  purse  to  the Rulers.  Clause (a) of Art. 291 enacts that the privy  purse shall be charged on and be paid out of the Consolidated Fund of  India.   The words clearly raise an  obligation  of  the Union to pay the privy purse. The  second  branch of the argument is also  without  force. Article  266  provides  that all revenues  received  by  the Government  of  India,  all loans raised  by  the  issue  of treasury  bills, loans or ways and means advances,  and  all moneys  received  in  repayment  of  loans  shall  form  the Consolidated Fund of India.  By Art. 112(2) the President is required in respect of every financial year to cause to laid before the Houses of Parliament the annual financial  state- ment  of  the  estimated receipts  and  expenditure  of  the Government of India showing separately-(a) sums required  to meet  expenditure  charged  upon the  Consolidated  Fund  of India;  and  (b)  sums required to  meet  other  expenditure proposed  to  be made from the Consolidated Fund  of  India. Clause.  (3)  of Art. 112 categorizes heads  of  expenditure charged  on the Consolidated Fund of India.  So much of  the estimates   as  relate  to  expenditure  charged  upon   the Consolidated Fund are by Art. 113(1) open to discussion  in, but  not  to  be  submitted to the vote  of  the  Houses  of Parliament.   After demands in respect of sums  required  to meet other expenditure have been made and assented to by the House  of  the People, a Bill is introduced to  provide  for appropriation  out of the Consolidated Fund of India of  all moneys  required  to  meet the expenditure  charged  on  the Consolidated Fund of India and the grants : Art. 114(1).  No amendment  may  be  proposed in either  House  to  vary  the amounts  or  to alter the destination of the  grant  or  the expenditure charged. In  support of his contention that by using  the  expression "charged"  in Arts. 291 and II 2(2) it is only  intended  to enact that the expenditure is not subject to the vote of the Parliament  and  that no priority in payment in  respect  of expenditure  is  declared, and in any event  the  expression

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"charged" creates no obligation enforceable at the  instance of  the  person  for  whose  benefit  it  is.  charged,  the Attorney-General   invited   our  attention   to   different provisions  of  the Constitution in each of which  there  is both  a  charge  oil the Consolidated Fund  of  an  item  of expenditure  and  an express direction for  payment  of  the prescribed  sum,  and contended that Art. 291  which  merely recognizes the obligations of the Union Government to  abide by  the  preexisting covenants, creates  no  obligation  for payment  of the privy purse to the Rulers He urged that  the word  "charge"  in the Constitution in  dealing  with  State financial  procedure has the meaning it has  in  accountancy practice; it merely specifies the source from which  payment is  to be made and does not create a right in the  Ruler  or any en- 88 forceable  obligation against the Union.  Under the  general law relating to transfer of property, a charge does not give rise  to a right in rem : the right is however more  than  a mere personal obligation, for it is a jus ad rem a right  to payment  out of property specified : Govind Chandra  Pal  v. Dwarka   Nath  Pal(1).   Raja  Sri  Shiva  Prasad  v.   Beni Madhab(2).   A  charge  gives a right to payment  out  of  a specific fund or property, and a right to prior payment; but it  does not create a right in rem in the fund or  the  pro- perty.  A charge therefore gives rise to a right to  receive payment,, out of a specified fund or property in  preference over  others.  In the absence of a clear indication, to  the contrary, it would be difficult to hold that the  expression "charged"  used in the context of financial matters  of  the State,  has  a different meaning.   Our  Constitution-makers borrowed the concept of a Consolidated Fund from the British system.  That has also been adopted in the Constitutions  of Canada,  Australia,  South  Africa  and  other  Commonwealth Countries.  Certain Acts in the United Kingdom and elsewhere prescribe  a sequence of priorities in payment of  different heads  of expenditure charged on the Consolidated Fund :  s. 1.  Consolidated Funds Act, 1816; s. I The House of  Commons (Speaker) Act, 1932, ss. 103, 104 & 105 of the British North America Act, 1867; ss. 117, 119 Constitution of the Union of South   Africa,  1909;  ss.  81  &  82  of  the   Australian Constitution 1900. Our   Constitution  does  not  recognize  any  sequence   of priorities.   But  that  does  not  alter  the   fundamental character of a charge that it specifies a fund out of  which satisfaction  of the expenditure charged must be  made,  and the prescribed expenditure shall have priority in payment to the  person for whose benefit the expenditure is charged  on the  Fund.  The constitutional obligation to proceed in  the manner  set  out in Arts. 112, 113 & 114  imposed  upon  the President  and the Parliament implies a right in the  person or  persons  in  respect of whom the expenditure  is  to  be incurred.  That view is supported by other provisions in the Constitution.  The expression "shall be charged on and  paid out of the Consolidated Fund" is used in Arts. 290, 290A and 291.   Articles 290 and 291 do not expressly  designate  the payee : Art. 290A designates the payee.  Article 273  merely uses  the expression "shall be charged" in dealing with  the grants-in-aid to the States of Assam, Bihar, Orissa and West Bengal,  without Any direction for payment.  Article  275(1) deals  with grants-in-aid to the revenues of such States  as the  Parliament  may determine: it is  only  the  provisions dealing  with the capital and recurring sums which  refer-to the  obligation  to pay, but in respect of  these  heads  of expenditure  there  is  no charge.   There  are  also  other

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provisions  in the Constitution which charge expenditure  on the Consolidated Fund, e.g. Art. 148(6); (1) I.L.R. 35 Cal. 837, 843. (2) I.L.R. I Pat. 387 89 Art.  146(3); Art. 299(3) and Art. 332, without any  express provisions  in  the Constitution relating  to  payment.   By leaving the payee innominate in Art. 291(a) no intention  to raise  an  obligation  without  a  corresponding  right   is disclosed.   The expression "shall be charged on,  and  paid out  of the Consolidated Fund" in Art. 291, is  intended  to enact that the privy purse "shall be charged-. on, and shall be paid out of the Consolidated Fund".  The expression "sums so  paid  to any Ruler" does not mean "sums if paid  to  any Ruler" : it means that "sums when paid to any Ruler".  Clau- ses  (a) and (b) of Art. 291 read with Arts. 112, 113 &  114 are,  in  our  judgment,  parts of  a  single  scheme;  they contemplate  that the privy purse shall be included  in  the financial statement as charged upon the Consolidated Fund  : it shall be beyond the voting power of the Parliament :  its destination shall not be altered : it shalt be paid to--the Ruler after the Appropriation Bill is passed, and when  paid it  shall  be free from liability to pay  taxes  on  income. This  is an integrated process, which cannot be  interrupted without dislocating the constitutional mechanism. The Attorney-General said that Art. 291 raises an "imperfect obligation".  An imperfect obligation is used to describe  a moral duty-for instance, a duty to pay a debt of honour,  or a  debt  barred by limitation, but is properly left  to  the free  will  of  him  whose  duty  it  is  to  discharge  the obligation.   A perfected obligation pertains to the  domain of law & justice : an imperfect obligation to the domain  of benevolence.   An  obligation  which arises out  of  a  con- stitutional  provision to pay to the citizens sums of  money in recognition of obligations of the predecessor  Government may scarcely be called imperfect. Article 291 does not merely incorporate, recognition of  the obligation  to pay the privy purse under covenants  incurred by  the Government of the Dominion of India : it gives  rise to  a liability dehors the covenants.  Under the  covenants and  agreements  the obligation to pay the privy  purse  was undertaken in the case of all Princes (bar the the heads  of the  States of Bhopal, Hyderabad and Mysore) to be made  out of the revenues of their respective States.  The  Government of  India concurred in and guaranteed payment of the  amount of  the  privy  purse  under the  terms  of  the  agreements constituting  the Unions.  By the States Merger  (Governors’ Provinces) Order, 1949, this liability was imposed upon  the Provinces  when the States merged with those Provinces.   In the case of a Union of States the liability to pay the privy purse to a head of State lay upon the Union of States to  be discharged out of the revenues of the State.  In the case of Centrally  merged States the Dominion Government had to  pay the privy purse out of the revenues of the State. 90 Even after the integration of States, the obligations  under the  covenants  were to be met out of the  revenues  of  the respective  States.   The covenants and the  various  stages through  which  ultimate integration was  achieved  probably remained acts of State.  The rights and obligation  accruing or arising under those acts of State could be enforced  only if the Union of India accepted those rights and obligations. After the Constitution the obligation to pay the privy purse rested upon the Union of India, not because it was inherited from   the   Dominion   of  India;  but   because   of   the

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constitutional  mandate under Art. 291.  The source  of  the obligation was in Art. 291, and not in the covenants and the agreements.   Reference to the covenants and  agreements  in Art. 291 was for defining the privy purse : the  obligations of  the  Provinces in respect of  the  "Provincially  merged States", and obligation of the Union of States in respect of the  States merged in such Unions, ceased by recognition  to retain their original character.  The obligation which arose out  of the merger agreement and was on that account an  act of  State shed its original character on acceptance  by  the Constitution.  The entity obliged to pay the privy purse did not after the Constitution  remain the same; the  source out of  which  the obligation was to be satisfied  was  not  the original  source;  the incident relating to  exemption  from payment of tax was vitally altered, and the amount also  was in  some cases different.  Whereas the liability to pay  the privy  purse to the Rulers under the merger  agreements  was assured by the Dominion Government, the Constitution imposed upon  the  Union  Government a directive to  pay  the  privy purse. In  support of his contention that even if Art.  291  itself gives rise to a fresh obligation, the Union of India has the same  defences  against the claim by the  Rulers  which  the predecessor  Government  had,  and on that  account  if  the Dominion  Government  could  plead  an act  of  State  as  a defence,  the  Union  of India could do  so,  the  Attorney- General  relied  upon two decisions : Doss v.  Secretary  of State  for India in Council;(1) and Saliman v. Secretary  of State  for  India(1).   The  e cases  were  decided  on  the interpretation  of the Government of India Act, 1958,  which by S. 67 enacted that treaties and all contracts, covenants, liabilities  and engagements of the East India Company  made before  the Act ,of 1858 were declared  enforceable  against the  Secretary  of  State as they might  have  been  by  and against  the East India Company, if the Government of  India Act,   1858,  had  not  been  passed.   There  is  no   such reservation in Art. 291, or in Art. 294(1) (b) and 295(1)(b) of the Constitution.  The cases of Doss (supra) and  Salaman (supra) have therefore no application. (1) [1871] L.R. 19 Eq. 509 (2) [1906] 1 K.B. 613 91 The  judgment  of  this Court in Union of India  &  Ors.  v. Gwalior  Rayon Silk Manufacturing (Weaving) Co. Ltd.  &  An- other(1)  has  also  no  bearing on  the  character  of  the obligation  arising by virtue of Art. 291.  In that  case  a company  which had entered into an agreement with the  State of  Gwalior  in 1947, whereby the State of  Gwalior  granted exemption  from liability to taxation of certain  industries started in the State, claimed to enforce that right  against the  Union  of India after integration of the  State.   This Court  held  that  by virtue of the  agreement  the  Central Legislature  was  not deprived of its legislative  power  to impose taxes, and on that account after the extension of the Income-tax Act, 1922, the exemption granted under the agree- ment  of  1947 must fall and that the Company  was  entitled only to such concessions as may be provided by the State law applicable thereto after the integration. The  structure  of  Art. 362 is  somewhat  different.   That Article   imposes   restrictions  upon   the   exercise   of legislative  and  executive functions.  Recognition  of  the personal rights and privileges of the Rulers arising out  of the  covenants is not explicit, but the, injunction that  in the  exercise of legislative and executive power due  regard shall  be had to the guarantees, clearly implies  acceptance

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and  recognition  of  the personal  rights,  privileges  and dignities.   The  Constitution thereby affirms  the  binding force of the guarantees and assurances under the  covenants, of personal rights, privileges and dignities, but unlike the guarantee  of  payment of the privy purse in Art.  291,  the guarantee  under  Art. 362 is of the obligations  under  the original  covenants and agreements executed by  the  Rulers, barring  those regarding which there is express  legislation enacted  to  give  effect to  certain  personal  rights  and privileges, e.g., Wealth-tax Act, 1957, Gift-tax Act,  1958, notifications under the Sea Customs Act, 1878, Code of Civil Procedure,  1908  and Code of Criminal Procedure,  1898.   A Ruler  seeking  to enforce  privileges  which  parliamentary statutes have recognised relies for right to relief upon the mandate of the statutes, and not of the covenant.               Article 363 of the Constitution provides               "   (1)  Notwithstanding  anything   in   this               Constitution but subject to the provisions  of               article 143 neither the Supreme Court nor  any               other  court  shall have jurisdiction  in  any               dispute  arising  out of any  provision  of  a               treaty, agreement, covenant, engagement, sanad               or other similar instrument which was  entered               into  or executed before the  commencement  of               this Constitution               (1)[1964] 7 R.C.R. 892               --L744 SupCI/71               92               by any Ruler of an Indian "State and to  which               the Government of the Dominion of India or any               of its predecessor Governments was a party and               which  has or has been continued in  operation               after  such  commencement, or  in  dispute  in               respect  of  any right accruing under  or  any               liability or obligation arising out of any  of               the  provisions of this Constitution  relating               to  any  such  treaty,  agreement,   covenant,               engagement, sanad or other similar instrument.               (2)   In this article--               (a)   "Indian   State"  means  any   territory               recognised  before  the commencement  of  this               Constitution by His Majesty or the  Government               of  the  Dominion  of India as  being  such               a State; and               (b)   "Ruler"  includes the Prince,  Chief  or               other    person   recognised    before    such               commencement by His Majesty or the  Government               of  the Dominion of India as the Ruler of  any               Indian State." Exclusion of the jurisdiction of the Courts is emphasized by the  non-obstante clause with which the  Article  commences. Notwithstanding  the  investment of jurisdiction  upon  this Court by Art. 32, notwithstanding the jurisdiction conferred upon  the High Courts by Art. 226, and  notwithstanding  the competence of all Civil Courts to decide disputes in respect of  the  obligations of the Union, it is declared  that  the Courts have no jurisdiction in respect of the two classes of disputes.   The  exception carved out of  the  exclusion  in respect  of  the jurisdiction conferred upon this  Court  by Art.  143  is not a real exception for the  jurisdiction  of this  Court  under Art. 143 is merely  advisory.   The  non- obstante  clause  however  does not  enlarge  the  field  of exclusion of judicial authority. The  Attorney-General  urged that the  jurisdiction  of  the Courts to enforce rights and obligations arising out of  the

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covenants entered into by the Rulers to which the Government of  the  Dominion or the predecessor Governments  were  par- ties, was excluded, because the rights and obligations arose out  of acts of State, and by constitutional provision  that exclusion was affirmed and extended after the  Constitution. An  act of State need not, it is true, arise out of  war  or conquest  :  It may be the result of an agreement,  and  the terms  of  the agreements and the obligations  flowing  only from  such agreements may not be enforced in  the  Municipal Courts of either State, unless the rights and obligations 93 are  recognized  and accepted by the States, or  unless  the document   evidencing  the  act  of  State  is  itself   the Constitution  of the State or States.  But there can  be  no act  of  state against its own citizen by  the  State.   The Rulers  who were before integration of their  States  aliens qua the Dominion Government are now citizens.  Their  rights and  obligations  which arose from an act of state  are  now recognized and accepted by the Union of India.   Enforcement of  those  rights  and  obligations  is  governed  by   the, municipal laws, and unless the jurisdiction of the Courts is excluded  in  respect  of any dispute, the  Courts  will  be competent  to grant relief.  An act of state  vanishes  when the   new  sovereign  recognizes  either  expressly  or   by implications the rights flowing therefrom : State of Gujarat v. Vora Fiddalti Badruddin Mithibarwala(1). We  are unable to agree with the Attorney-General that  "old unidentified  concept of paramountcy of the  British  Crown" was inherited by the Union, by reason of the instruments  of accession  and merger agreements, and that  "recognition  of Rulership was a ’gift of the President’, and not a matter of legal  right, existing as it did in the area of  paramountcy and  remaining with the Government of India".   The  British Crown  did  not acquire paramountcy rights  by  any  express grant, cession or transfer:it exercised paramountcy  because it was the dominant power.  Paramountcy had no legal origin, and no fixed concept: its dimensions depended upon what in a given  situation  the representatives of the  British  Crown thought expedient.  Paramountcy meant those powers which the British  authorities by the might of arms, and in  disregard of  the  sovereignty and authority of the  States  chose  to exercise.   But  that  paramountcy lapsed  with  the  Indian Independence  Act, 1947: even its shadows  disappeared  with the integration of the States with the Indian Union.   After the  withdrawal  of  the British  power  and  extinction  of paramountcy of the British power the Dominion Government  of Indian  did not and could not exercise any paramountcy  over the States.  In clause 3 of the Standstill Agreement it  was expressly  recited that "Nothing in the  agreement  includes the  exercise of any paramouncy functions".   The  relations between the States and the Dominion Government were strictly governed  by  the instruments executed from  time  to  time. Subject to the power conferred in respect of certain matters of  common  interest  to legislate  and  exercise  executive authority,   the  Princes  had  sovereignty   within   their territories.  With the advent of the Constitution the States ceased  to  exist,  and  the Princes  and  Chiefs  who  were recognized  as Rulers were left with no sovereign  authority in them.  It is difficult to conceive of the (1) [1964] 6 S.C. R. 401 94 government  of a democratic Republic exercising against  its citizens  "paramountcy"  claimed  to be  inherited  from  an Imperial Power.  The power and authority which the Union may exercise  against its citizens and even aliens  spring  from

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and are strictly circumscribed by the Constitution. The  fundamentals  on  which  paramountcy  rested-i.e.   the compulsion  of  geography and the  essentials  for  ensuring security  and  special responsibility of the  Government  of India  to  protect  all territories in  India  survived  the enactment of the Indian Independence Act, for between August 15, 1947 and the date of integration, of the various States, the  Government  of  India  was  the  only  fully  sovereign authority.  But paramountcy with its brazen-faced  autocracy no longer survived the enactment of the Constitution.  Under our Constitution an action not authorised by law against the citizens of the Union cannot ’be supported under the shelter of  paramountcy.   The functions of the President  of  India stem  from  the  Constitution-not from  a  "concept  of  the paramountcy   of   the   British   Crown"   identified    or unidentified.  What the Constitution does not authorise, the President  cannot  grant.   Rulership  is  therefore  not  a privilege  which  the President may in the exercise  of  his discretion bestow or withhold. -Jurisdiction of the Courts in matters specified is excluded not  because  the  Union  of India is  a  successor  to  the paramountcy  of the British Crown,, nor because  the  rights and obligations accepted and recognized by the  Constitution may still be regarded as flowing from acts of State : it  is only excluded in respect of specific matters by the  express provision in Art. 363 of the Constitution.  Jurisdiction  of the  Courts  even  in those matters is not  barred  "at  the threshold"  as  contended  by  the  Attorney-General.    The President cannot lay down the extent of this Court’s  juris- diction.  He is not made by the Constitution the arbiter  of the  extent  of his authority, nor of the  validity  of  his acts.   Action of the President, is liable to be tested  for its validity before the Courts unless their jurisdiction  is by express enactment or clear implication barred.  To accede to the claim that the jurisdiction of the Court is barred in respect  of  whatever  the executive asserts  is  valid,  is plainly to subvert the Rule of Law.  It is therefore  within the  province  of  the Court alone  to  determine  what  the dispute  brought before it is, and to determine whether  the jurisdiction of the Court is, because it falls within one of the two limbs of Art. 363, excluded qua that dispute. In dealing with the dimensions of exclusion of the  exercise of judicial power under Art. 363, it is necessary to bear in mind  certain broad considerations.  The proper forum  under our  Constitution  for determining a legal  dispute  is  the Court which is by 95 training  and  experience, assisted  by  properly  qualified advocates,  fitted to perform that task.  A provision  which purports  to  exclude  the jurisdiction  of  the  Courts  in certain  matters and to deprive the aggrieved party  of  the normal  remedy  will  be strictly construed,  for  it  is  a principle  not to be whittled down that an  aggrieved  party will not, unless the jurisdiction of the Courts is by  clear enactment   or  necessary  implication  barred,  be   denied recourse to the Courts for determination of his rights.  The Court will interpret a statute as far as possible, agreeably to  justice  and  reason and that in case  of  two  or  more interpretations, one which is more reasonable and just  will be  adopted, for there is always a presumption  against  the law maker intending injustice and unreason.  The Court  will avoid  imputing_to the Legislature an intention to  enact  a provision  which  flouts  notions of justice  and  norms  of fairplay, unless a contrary intention is manifest from words plain and unambiguous.  A provision in a statute will not be

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construed to defeat its manifest purpose and general  values which  animate its,, structure.  In an  avowedly  democratic polity,  statutory  provisions  ensuring  the  security   of fundamental  human  rights including the right  to  property will,   unless   the  contrary  mandate   be   precise   and unqualified,  be  construed liberally so as  to  uphold  the right.    These  rules  apply  to  the   interpretation   of constitutional and statutory provisions alike. Article  366(22)  defines a "Ruler" as a  Prince,  Chief  or other person who has entered into a covenant or agreement as is  referred to in Art. 291, and is recognized for the  time being  by the President and includes the successor  of  such Ruler.   Article  291  in defining  the  sum  guaranteed  or assured to the Ruler as privy purse refers to covenants  and agreements  entered  into by the Rulers which  guarantee  or assure the payment of sums as privy purse free from tax.  It was  contended  on behalf of the Union that  the  expression "relating to in Art. 363 means "   referring to", and  since Arts.  291, 362 and 366(22) refer to covenants,  the  Courts have  no jurisdiction to entertain disputes with respect  to rights  arising from those provisions.  In support  of  that argument  counsel for the Union referred us, to the  diverse meanings in which the expression "relating to" is used.  But a  constitutional provision will not be interpreted  in  the attitute  of a lexicographer, with one eye on the  provision and  the  other on the lexicon.  The meaning of  a  word  or expression.  used in the Constitution often is  coloured  by the context in which it occurs: the simpler and more  Common the  word  or expression, the more meanings  and  shades  of meanings  it has.  It is the duty of the Court to  determine in  what particular meaning and particular shade of  meaning the word of expression was used by the Constitution  makers, and in discharging the duty the Court will take 96 into  account the context in which it occurs, the object  to serve  which  it  was used,  its  collocation,  the  general congruity  with  the concept or object it  was  intended  to articulate  and a host of other considerations.  Above  all, the  Court  will  avoid repugnancy with  accepted  norms  of justice  and  reason.  The expression  "provisions  of  this Constitution  relating  to" in Arts.  363  means  provisions having  a dominant and immediate connection with":  it  does not  mean merely having a reference to.  A wide  meaning  of the expression may exclude disputes from the jurisdiction of the  Courts  in respect of rights  or  obligations,  however indirect    or   tenuous   the   connection   between    the constitutional provision and the covenant may be. Jurisdiction  to try a proceeding is barred under the  first limb of Art. 363 if the dispute arises out of the  provision of  a covenant : it is barred under the second limb of  Art. 363 if the Court holds that the dispute is with respect to a right  arising  out  of  a  provision  of  the  Constitution relating  to  a  covenant.  A dispute that an  order  of  an executive body is unauthorised, or a legislative measure  is ultra  vires, is not one arising out of any  covenant  under the  firm limb of Art. 363, merely because the order or  the measure  violates the rights of the citizen which,  but  for the  act or measure, were not in question.  The  dispute  in such a case relates to the validity of the act or the  vires of  the measure.  Exclusion of the Court’s  jurisdiction  by the terms of the relevant words in the second limb lies in a narrow field.  If the constitutional provision relating to a covenant  is the source of the right claimed to accrue, or liability  claimed to arise, then clearly under  the  second limb  the jurisdiction of the Court to entertain  a  dispute

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arising  with respect to the right or obligation is  barred. We  need  in  the present case express  no  opinion  on  the question  whether  a  dispute  that  an  executive  act   or legislative  measure  operating  upon a  right  accruing  or liability arising out of a provision is invalid falls within the second limb of Art. 363. As a quid pro quo for agreeing to surrender their power  and authority,  it  was  enacted in the  Constitution  that  the Princes who had signed the covenant of the nature  specified will  be  recognized  as Rulers.  But  under  the  treaties, covenants  and  agreements executed by the  former  Princes, there  was  no  provision for recognition  of  Rulers.   The President  was  invested by the Constitution with  power  to recognise  Rulers  under Art. 366(22).  The  status  of  the Rulers  under the Constitution is not the status  which  the Princes  had:  their rights, privileges  and  functions  are fundamentally  different from those of the  former  Princes. Some  degree  of obscurity is introduced by the use  of  the expression  "Ruler"  and "Ruler of an Indian State"  in  the Articles.  But the mean- 97 ing  is reasonably plain.  Ruler as defined in Art.  366(22) is  a  former Prince, Chief or other person who  was  on  or after  January  26, 1950, recognised as a Ruler,  he  having signed  the  covenant, or his successor.  The  Ruler  of  an Indian  State  means a Prince, or Chief who  was  recognized before the, Constitution by the British Crown.  The Ruler of an Indian State had sovereign authority over his State.  The Ruler  recognized by the President rules over no  territory, and  exercises no sovereignty over any subjects.  He has  no status  of a potentate and no privileges which are  normally exercised  by  a potentate.  He is a citizen of  India  with certain  privileges  accorded  to  him  because  he  or  his predecessor  had surrendered his territory, his  powers  and his sovereignty. Article 366(22) is, in our judgment, a provision relating to recognition  of Rulers: that is the direct and only  purpose of  the  provision.   It is not a provision  relating  to  a covenant.  The qualification of a person being recognized as a  Ruler is undoubtedly that he is a Prince, Chief or  other person  who had entered into a covenant or agreement  as  is referred to in Art. 291, or that he is the successor to such a Ruler.  Reference to the covenant or the agreement of  the nature  mentioned in Art. 291 is for determining who may  be recognized  as  a  Ruler.  Because  of  that  reference  the provision  enacted with the object of  conferring  authority upon the President to recognize a Ruler, will not be  deemed one relating to the covenant or agreement. The Attorney-General urged that this Court has decided  that the  Courts  have no jurisdiction to determine  whether  the order of the President under Art. 366(22) is valid, and that the Court will not be justified in unsettling the law.  The decisions  relied upon are: Nawab Usman Ali Khan v.  Sgarmal (supra) and Kunvar Shri Vir Rajendra Singh v. Union of India (supra).   In  our judgment, in neither of these  cases  the question about the bar to the Court’s jurisdiction by virtue of  Art.  363  was directly in issue.  In  Nawab  Usman  Ali Khan’s  case  (supra) this Court upheld the claim  that  the privy  purse payable to the Ruler of Jaora was  exempt  from attachment  under  s.  60  (1) (g)  of  the  Code  of  Civil Procedure.  The Court in that case considered the nature  of the  privy purse and held that it was a "political  pension" within  the  meaning of s. 60(1) (g) of the  Code  of  Civil Procedure.   Bachawat,  J., speaking for  the  Court,  after setting  out  the history of integration and  absorption  of

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States, summarised the provisions of Arts. 291, 362, 363 and 366(22) of the Constitution and observed (at p. 208):               "Now, the Covenant entered into by the  Rulers               of  Madhya Bharat States was a treaty  entered               into  by the Rulers of independent  States  by               which they gave               98               up  their sovereignty over  ’their  respective               territories  and vested it in the  new  United               State  of Madhya Bharat.  The Covenant was  an               act  of State, and any violation of its  terms               cannot form the, subject of any action in  any               municipal courts.  The guarantee given by  the               Government  of  India was in the nature  of  a               treaty   obligation   contracted   with    the               sovereign  Rulers of Indian States and  cannot               be  enforced  by action in  municipal  courts.               Its  sanction is political and not legal.   On               the  coming into force of the Constitution  of               India,  the  guarantee  for  the  payment   of               periodical sums as privy purse is continued by               Art.   291  of  the  Constitution,   but   its               essential political character is preserved  by               Art.   363  of  the  Constitution,   and   the               obligation  under  this  guarantee  cannot  be               enforced in any municipal court.  Moreover, if               the President refuses to recognise the  person               by  whom the covenant was entered into as  the               Ruler of the State, he would not be,  entitled               to  the  amount payable as privy  purse  under               Art. 291." The  dictum  that the essential political character  of  the guarantee for the payment of periodical sums as privy purse is  preserved  by  Art. 363, and the  obligation  cannot  be enforced  in any municipal Court was not necessary  for  the purpose  of  the  decision, and is,  in  our  judgment,  not correct.  Article 363 prescribes a limited exclusion of  the jurisdiction of Courts, but that exclusion does not  operate upon the claim for a privy purse, relying upon Art 291.  The question as to the jurisdiction of the Courts to entertain a claim  for  payment  of  privy purse  did  not  fall  to  be determined  in  Nawab Usman Ali Khan’s case  (supra).   The, only  question  raised was whether the privy purse  was  not capable of attachment in execution of the decree of a  Civil Court,  because  of  the  specific  exemption  of  political pensions under s. 60 (1) (g) of the Code of Civil Procedure. In  Kanvar Shri Vir Raiendra Singh’s (supra) the  Court  did not  express any opinion that Art. 366(22) was  a  provision relating  to a covenant within the meaning of Art. 363.   In that  case the petitioner who was not recognised as a  Ruler by  the President abandoned at the hearing of  his  petition his  claim  to  the  privy purse payable  to  the  Ruler  of Dholpur, and pressed his claim by succession under the Hindu Law to the private property of the former Ruler.  The  Court was  not called upon to decide and did not decide that  Art. 366(22)  was a provision relating to a covenant  within  the meaning  of Art. 363.  It is difficult to regard a  word,  a clause or a sentence occurring in a judgment of this  Court, divorced  from its context, as containing a full  exposition of  the  law on a question when the question did  not  ,even fall to be answered in that judgment. 99 In  the view we have expressed, the argument raised  by  Mr. Palkhivala that even if cl. (22) of Art. 366 is a  provision relating  to the covenants, the jurisdiction of  this  Court

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under Art. 32 to grant relief against an invalid exercise of power  withdrawing recognition of the Rulers is not  barred, needs no consideration. The  source of the right to receive the privy purse  is  for reasons  already stated the constitutional mandate :  it  is not in the covenant.  Reference to the covenant in Art.  291 merely  identifies the sum payable as privy purse : it  does not  make Art. 291 a provision relating to the covenant.   A dispute  as  to  the right to receive the  privy  purse,  is therefore  not a dispute arising out of the covenant  within the first limb of Art. 363, nor is it a dispute with  regard to a right accruing or obligation arising out of a provision of the Constitution relating to a covenant. The  personal  rights  (other than the right  to  the  privy purse)  privileges and dignities are recognized by Art.  362 of  the Constitution and the Legislature and  the  executive are  enjoined to have due regard to those  personal  rights, privileges  and  dignities, in exercising  their  respective power.   Article  362  is plainly a  provision  relating  to covenants  within  the  meaning of Art.  363.   A  claim  to enforce  the  rights,  privileges and  dignities  under  the covenants will therefore be barred by the first limb of Art. 363  and  a claim to enforce the recognition of  rights  and privileges  recognized by Art. 362 will be barred under  the second  limb of Art. 363.  Jurisdiction of the Courts  will, however, not be excluded where the relief claimed is founded on a statutory provision enacted to give effect to  personal rights under Art. 362 We  are  accordingly  of  the  view  that  the  Courts  have jurisdiction to interpret and to determine the true meaning, of  Arts.  366  (22),  291, 362 and 363.   The  bar  to  the jurisdiction of the Courts by Art. 363 is a limited bar : it does not arise merely be cause the Union of India sets up  a plea  that  the dispute falling within Art. 363  is  raised. The Court will give effect to the constitutional mandate  if satisfied that the dispute arises out of any provision on of a  covenant  which  is in force, and  was  entered  into  or executed ’before the commencement of the Constitution and to which  the  predecessor  of the Government of  India  was  a party,  or that it is in respect of rights,  liabilities  or obligations  accruing or arising under any provision of  the Constitution relating to a covenant.  But since the right to the privy purse arises under Art. 291 the dispute in respect of   which   does  not  fall  within  either   clause,   the jurisdiction  of  the  Court is not  excluded.   Again,  the jurisdiction  of  the Court is not excluded. in  respect  of disputes  relating to personal rights and  privileges  which are granted by statutes. 100 We further hold that the President is not invested with  any political power transcending the Constitution, which he  may exercise  to the prejudice of citizens.  The powers  of  the President  arise from and are defined by  the  Constitution. Validity of the exercise of those powers is always  amenable to  the jurisdiction of the Courts, unless the  jurisdiction is by precise enactment excluded.  Power of this Court under Art.  32,  or of the High Courts under Art. 226,  cannot  be bypassed  under  a claim that the  President  has  exercised political power. On the view we have expressed, it is unnecessary to  express any  opinion  on  the plea that the order  was  made  for  a collateral purpose. A writ will therefore issue declaring that the order made by the  President  on September 6,  1970  "do-recognising"  the Rulers  is illegal and on that account inoperative, and  the

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petitioner  will be entitled to all his  preexisting  rights and privileges including the right to the privy purse, as if the  order had not been made.  The petitioner will  get  his costs of the petition. Writ  petitions Nos. 377 to 383 of 1970 raise the  identical question which is raised in the main petition.  For  reasons set out in the principal petition a similar writ will issue. Each  petitioner  will get his costs of the  petition.   One hearing  fee  in those, petitions in which  the  petitioners have appeared through the same counsel. Mitter,  J. On the 6th September, 1970 there was  issued  in the name of the President an order of the following text : "In exercise of the powers vested in him under Art. 366 (22) of  the Constitution of India, the President hereby  directs with  effect  from  the  date of  this  order  His  Highness Maharajadhi  Raj  Madhav Rao Jiwaji Rao Scindia  Bahadur  do cease to be recoginised as a Ruler of Gwalior." Admittedly this followed the signing of an instrument by the President  on the night of 5th September 1970 purporting  to withdraw  recognition  of all the Rulers.  Orders  like  the above  were issued in the case of each and every  individual Ruler  of an Indian State numbering over three  hundred  and sixty.   The petitioner in Writ Petition No. 376 of 1970  is the  person to whom the above order was directed.  He  is  a national  and  citizen of India and was  recognised  by  the President  of  India  as a Ruler on 16th July  1961  as  the successor to the gaddi of the State of Gwalior on the  death of  the  preceding Ruler of the State.  The late  Ruler  had signed  an instrument of Accession on the 15th  August  1947 which was accepted by the then Governor-General of India  on the 16th 101 August  1947.  On 22nd April, 1948 the said preceding  Ruler of the State had signed a covenant with the other Rulers  of various  States in Central India which led to the  formation of  the Madhya Bharat State on the 15th June 1948.  As  such Ruler  the  petitioner  was  being paid  a  privy  purse  of Rs.10,00,000.  per  year and was also  entitled  to  certain rights and privileges under various statutes. The  recognition  as  a Ruler was not  an  empty  formality. Different Articles of the Constitution provide for and  deal with the rights and privileges of the Rulers.  The  forenost among them is Art. 291 which after its amendment as a result of the Seventh Amendment of the Constitution Act, 1956, runs as follows               "Where under any covenant or agreement entered               into by the Ruler of any Indian State)  before               the  commencement  of this  Constitution,  the               payment  of  any sums, free of tax,  has  been               guaranteed or assured by the Government of the               Dominion  of India to any Ruler of such  State               as privy purse--               (a)   such sums shall be charged on, and  paid               out of, the Consolidated Fund of India;               (b)   the  sums so paid to any Ruler shall  be               exempt from all taxes on income."               Art.  362 of the Constitution in  its  present               form  deals with the rights and privileges  of               Rulers  of Indian States other than the  privy               purse and reads :               "In the exercise of the power of Parliament or               of the Legislature of a State to make laws  or               in the exercise of the executive power of  the               Union  or of a State, due regard shall be  had               to the guarantee or assurance given under  any

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             such  covenant or agreement as is referred  to               in  article 291 with respect to  the  personal               rights, privileges and dignities of the  Ruler               of an Indian State."               The  only  article in the  Constitution  which               mentions  the  recognition of a  person  as  a               Ruler  is  Art.  366 which is  a  key  to  the               meaning of various words and expressions  used               throughout the Constitution.  Clause 22 of the               article provides               "In  this  Constitution  unless  the   context               otherwise, requires, the following expressions               have the meaning hereby respectively  assigned               to them, that is to say-               102               (22)"Ruler"  in relation to an Indian  State               means  the  Prince, Chief or other  person  by               whom  any  such covenant or  agreement  as  is               referred  to in clause (1) of article 291  was               entered  into  and who for the time  being  is               recognised  by the President as the  Ruler  of               the State, and includes any person who for the               time  being is recognised by the President  as               the successor of such Ruler;"               Clause  (15)  of Art. 366  defines  an  Indian               State as any territory which the Government of               the  Dominion  of India recognised as  such  a               State  Clause (21) of Art. 366  (now  deleted)               provided as follows :--               "Rajpramukh" means-               (a)in  relation to the state  of  Hyderabad               the   person  who  for  the  time   being   is               recognised  by the President as the  Nizam  of               Hyderabad;               (b)in  relation to the State of  Jammu  and               Kashmir or the State of Mysore, the person who               for  the  time  being  is  recognised  by  the               President as the Maharaja of that State; and               (c)In relation to any other state specified               in  Part B of the First Schedule,  the  person               who  for the time being is recognised  by  the               President as the Rajpramukh of that State               and  includes in relation to any of  the  said               States   any   person  for  the   time   being               recognised  by the President as  competent  to               exercise  the  powers  of  the  Rajpramukh  in               relation to that State;"               To  complete the account of the provisions  of               the  Constitution with regard to Rulers it  is               necessary   to  set  out  Art.  363   of   the               Constitution,, the interpretation of which  is               the  most  important point in  the  series  of               petitions presented by a number of Rulers  ,of               Indian  States  to this Court  with  identical               prayers.               "363(1)   Notwithstanding  anything  in   this               Constitution but subject to the, provisions of               article  143, neither the" Supreme  Court  nor               any other court shall have jurisdiction in any               dispute  arising  out of any  provision  of  a               treaty, agreement, covenant, engagement, sanad               or other similar instrument which was  entered               into  or executed before the  commencement  of               this  Constitution by any Ruler of  an  Indian               State  and  to which the  Government  of  the

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             Dominion  of India or any of  its  predecessor               Governments  was a party and which has or  has               been con-               103               tinued  in operation after such  commencement,               or  in  any dispute in respect  of  any  right               accruing under or any liability or  obligation               arising  out of any of the provisions of  this               Constitution   relating   to   such    treaty,               agreement,  covenant,  engagement,  sanad   or               other similar instrument.               (2) The grievance of the petitioner in this series of  petitions is  the same’ as the rights asserted by them flow from  more or less similar transactions. We have to delve into the past history of India in order  to appreciate  the  setting  in which these  persons  or  their ancestors  who were formerly Rulers of territories in  India wore  brought within the fold of the  Constitution.   Though not  sovereign  within  the meaning of  that  expression  in International Law these former Rulers had certain attributes of sovereignty during the days preceding the independence of India. As is well known to all students of history the  achievement of  setting up a British Empire in India was "in  its  early stages at any rate, brought about by the agents of the  East India  Company in India." The Company entered into  treaties with  Indian  States in the early stages aiming at  no  more than securing for the Company a privileged position in trade against  its rivals.  For the first time the  Parliament  of England  asserted  its authority and control over  the  East India Company’s activities both in.  India and in England by the  Regulating  Act of 1773, under which  the  Governor  of Bengal became the Governor-General in Council with a certain amount  of  control  over the  Presidencies  of  Bombay  and Madras.   The Marquis of Wellesley as  the  Governor-General felt  convinced  when he came to India in 1798 and  saw  the state  of affairs here that the British must become the  one paramount  power in the country.  He set up a  system  under which no Indian State which had accepted subsidiary alliance with the British could make any war or carry on negotiations with  another  State  without the  Company’s  knowledge  and consent.  It was during his time. that the British  Dominion in   India  expanded  considerably.   He   had   practically eliminated the French influence in India and brought  many States under the subsidiary alliance, the notable  instances being  Hyderabad,  Travancore, Mysore, Baroda  and  Gwalior. Under  this system of subsidiary alliance the bigger  states were  to maintain armies commanded by British  officers  for preservation  of the public peace and their rulers  were  to cede certain territories for the upkeep of these forces; the smaller  States  were to pay a tribute to the  Company.   In return the Company were to 104 protect  them, one and all, against external aggression  and internal  rebellion.  A British Resident was also  installed in every State that accepted the subsidiary alliance.   This process  was  carried on during the regime of  Hastings  and Dalhousie.   The  Marquis  of Hastings who  came  out  as  a Governor-General  in 1813 crushed the Pindaris  and  finally broke  the  Mahratta  power and carried the  spread  of  the British dominion over northern and central India to a  stage which  it was only left for Lord Dalhousie, a quarter  of  a century  later, to complete.  He resumed Wellesley’s  policy by  extending  the Company’s supremacy and  protection  over

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almost  all  the  Indian States.  By the time  he  left  the country in 1823, the British empire in India had been formed and  its  map  in essentials drawn.  Every  State  in  India outside the Punjab and Sind was under the Company’s control. The   influence   of   the   company   over   the   internal administration  of the States rapidly increased ,during  the period following the retirement of Lord Hastings.  Residents became   gradually   transformed  into   diplomatic   agents representing a foreign power into executive and  controlling officers  of  a superior government.  The  Charter  of  1833 abolished  the Company’s trading activities and the  Company assumed  the  functions of the Government  of  India.   Lord Dalhousie   acquired  vast  territories  for   the   Company conquering  the  Punjab  and pushing the  frontiers  to  the natural  limits of India i.e. the base of the  mountains  of Afghanistan.  Whatever may have been the cause which led  to the  Mutiny of the year 1857 it was realised by the  British people that the Indian States could play a vital role as one of  the bulwarks of British rule.  An Act of 1858  intituled "An Act for the Better Government of India" provided by  the 67th section that "all treaties made by the Company shall be binding  upon  Her  Majesty".   In  her  proclamation  Queen Victoria made it clear that the Government would respect the rights, dignity and honour of Native Princes.  The policy of annexation  vigorously pursued by Dalhousie gave way to  the perpetuation  of  the  States as  separate  entities.   Lord anning  carried this new policy to its next logical step  by recommending  that  the integrity of the  States  should  be preserved  by  perpetuating the rule of  the  Princes  whose power to adopt heirs should be recognised.  The Secretary of State  for  India agreed to this recommendation  and  sanads were  granted to the Ruler under which in the event  of  the failure of the natural heirs, they were authorised to  adopt their  successors according to their law and custom.   These sands  were  intended to remove mistrust and  suspicion  and knit the Native Sovereigns to the paramount power.  The  new policy was to punish the ruler for extreme misgovernment and if  necessary to depose him but not to annex his  State  for misdeeds.  The Indian States thus became part and parcel  of the British Empire in India.  In The words of Lord Canning : 105               "The territories under the sovereignty of  the               Crown  became  at  once as  important  and  as               integral a part of India as territories  under               its direct domination.  Together they form one               direct care and the political system which the               Moghuls  had not completed and the  Maharattas               never contemplated is now an established  fact               of history." The  next  five  decades  were occupied  with  the  task  of evolving   a  machinery  for  controlling  the  States.    A political  department was set up under the direct charge  of the  Governor-General.   It had at its  disposal  a  service known  as the Indian Political Service, manned  by  officers taken from the Indian Civil Service and the Army.  It had  a police force which was maintained partly by the revenues  of the  Central Government and partly by contributions made  by the  States.   The Political Department  had  Residents  and Political  Agents  in  all important States  and  groups  of States.   The Secretary of State kept a close  control  over the activities of the Political Department mainly because of the  interest of the Crown in matters affecting  the  rights and privileges of the Rulers. Constitutionally  the  States were not part of  the  British India   nor   were  their  inhabitants   British   subjects.

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Parliamentary  had no power to legislate for the  States  or their  people.   The Crown’s relationship  with  the  Indian States was conducted by the Governor-General in Council  and since  he  was in charge of the  political  Department,  his Executive  Council  tended  in  practice  to  leave  States’ affairs  to  him which meant that the  Political  Department came gradually to assume the position of a government within a government. With  the building up of a strong Political  Department  the Crown  started  asserting rights never claimed by  the  East India  Company  and even at times cutting  across  treaties. The  most  outstanding example and at the same time  one  of far-reaching consequence, in the relations of the  paramount power  with  the  Rulers  was  the  prerogative  assumed  of recognising  succession in the case of natural  heirs.   The first ruling in this behalf was laid down by the  Government of  India  in  1884  in a  letter  addressed  to  the  Chief Commissioner of the Central Provinces in which it was stated that  succession  to  a native State  is  invalid  until  it receives in some form the sanction of the British authority. In  the view of the Secretary of State expressed in 1891  it was  admittedly the right and duty of Government  to  settle successions in the protected States in India.  This right it was  claimed  flowed essentially from  the-position  of  the British as the Supreme power responsible for maintaining law and order throughout the country.  That power alone had  the necessary sanction to enforce decisions regarding 106 disputed  successions.   The Ruler thus did not  inhert  his gaddi as of right but as a gift from the paramount power. A definite pattern of the Government of India’s relationship with  the  States had been developed b the  time  the  first world  War broke out in 1914.  The Rulers rallied  to  fight for  the  Empire,  and the organisation of  the  war  effort involved  closer coordination of administrative activity  in the States as well as in the Provinces. Throughout the country the tide of national aspirations  was rising fast.  Although Britain claimed to be fighting a  war to defend freedom and democracy the system of government  by which  she  continued to hold India in imperial  thrall  was clearly  at variance with her professed aims.   The  British Government   recognised  that  the  situation   needed   now handling.   In  1917  Montagu, the Secretary  of  State  for India, announced that the policy of His Majesty’s Government with  which the Government of India was in complete  accord, was  that of an increasing association of Indians  in  every branch of the administration and the gradual development  of self-governing  institutions  with  a  view  to  progressive realisation  of  responsible  government  in  India  as   an integral part of the British Empire. The  Secretary  of  State for India  and  the  Viceroy  Lord Chelmsford  published  a  joint  report  on   Constitutional Reforms  which  was the first major investigation  into  the relations of the States with the rest of India and with  the paramount power.  The authors of the report visualised  that the  Provinces would ultimately become self-governing  units held  together  by  a Central Government  which  would  deal solely with matters of common concern to all of them. With  regard  to the Rulers the authors of the  report  felt that the time had come to end their isolation and that steps should  be  taken for joint consultations by  them  for  the furtherance   of  their  common  interest.   There   was   a conference  of  ruling  Princes and  Chiefs  in  1919  which recommended  that  the  rulers of  States  having  full  and unrestricted  powers of civil and criminal  jurisdiction  in

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their States, and the power to make their own laws should be termed  sovereign Princes as against those who  lacked  such powers.  This was however not favoured by the Government  of India.  In 1921 a Chamber of Princes was brought into  being by  a  Royal Proclamation which announced that  the  Viceroy would take counsel of the Chamber freely in matters relating to  that  territories  of Indian  States  generally  and  in matters  which  affected  these  territories  jointly   With British  India or with the rest of the Empire.  The  Chamber of Princes would have no concern in the internal affairs  of individual States or relations of Individual States with 107 the  Government of India while the existing rights of  these states  and  their  freedom of action would  in  no  way  be prejudiced or impaired. In  the years following the first World War the  Nationalist Movement in India gained, considerable impetus.  Lord  Irwin who  came  out as Viceroy in 1926 felt  that  the  political situation  in the country demanded some gesture on the  part of  Britain.   In March 1927 an announcement  was  made  for appointing  a  statutory  Commission  to  enquire  into  the working  of  the Government of India Act 1919  and  to  make recommendations     regarding     further     constitutional advancement.  At or about this time the Rulers of the Indian States  also  demanded an impartial enquiry into  the  whole relationship  between  themselves and the  paramount  power. The  Secretary  of  State appointed  a  Committee  of  three members  headed  by Sir Harcort Butler to enquire  into  the relationship between the States and the paramount power  and to suggest means for the more satisfactory adjustment of the existing  economic  relations, between the  States  and  the British India. On  behalf  of  the  States  it  was  contended  before  the Committee  that all original sovereign powers  except  those which had been transferred with their consent to the  Crown were  still possessed by them and that such transfers  could be  effected only by the consent of the States and that  the paramountcy  of  the British Crown was  limited  to  certain matters-those  relating to foreign affairs and external  and internal security. The Committee was not prepared to  accept this   and  held  that  none  of  the  States  overhad   any International  status.  Ile  committee  refused  to   define paramountcy  but  asserted  that  paramountcy  must   remain paramount;  it  must  fulfil  its  obligations  defining  or adopting itself according to the shifting necessities of the time  and  the progressive development of the  States.  They however  observed  that if any Government in the  nature  of Dominion  Government should be constituted in British  India such Government could clearly be a new Government resting on a  new written Constitution. The Committee noted  the  grave apprehension  of  the Princes on this score and  recorded  a strong  opinion that in view of the fact of  the  historical nature  of the relationship of the paramount power  and  the Princes  the latter should not be transferred without  their agreement to a relationship with a new Government in British India responsible to an Indian Legislature. This really laid the  foundation of a policy whereby in later years  a  wedge was  effectively driven between the States and  the  British India. The Rulers were certainly disappointed with the findings  of the  Butler  Committee with regard to their  main  hopes  of being freed from the unfettered discretion of the  Political Department 8-L744Sup.CI/71 108

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to intervene in their internal affairs.  Nationalist opinion in  the  country viewed the recommendations of  the,  Butler Committee with grave apprehension and emphatic protests were entered in the report of a committee presided over by Pandit Motilal Nehru and an All Parties Conference was arranged  in 1928 to frame a Dominion Constitution for India.  It gave  a warning  that  it was inconceivable that the people  of  the states who were fired by the .same ambitions and aspirations as  the  people  of British India would  quietly  submit  to existing conditions for ever, or that the people of  British India  bound  by  the  closest ties  of  family,  race  and religion to their brethren on the other side of an imaginary line would .never make common cause with them.  The  Viceroy Lord Irwin who had conferred with the British Government  in 1929  made an official pronouncement on his return to  India to   the   effect  that  the  natural   issue   of   India’s constitutional  progress  was  the  attainment  of  Dominion Status.   He also announced that the British Government  had accepted the suggestion of Sir John Simoh for a Round  Table Conference.   There was a series of these conferences  which debated  on many and various points including Federation  of the States with the Provinces of British India. Then  came the Government of India Act 1935  which  provided for a constitutional relationship between the Indian  States and British India on a federal basis.  A special feature  of the  scheme ’Was that whereas in the case of  the  provinces accession to the Federation was to be automatic in the  case of  the  states it was to be voluntary.  A State was  to  be considered  to  have  acceded when  its  Ruler  executed  an Instrument  of Accession and after it was accepted  by  His Majesty  the King of England.  The Government of  India  Act 1935  other than the Part relating to Federation, came  into force  on the 1st April 1937.  From that date the  functions of the Crown in the relations with the States were entrusted to  the  Crown  Representative;  those  functions   included negotiations   with  the  Rulers  after  accession  to   the Federation: The Federation however never took shape,. An  important announcement in the Constitutional set  up  of India  which came after the Second World War had broken  out was  the  Draft  Declaration known as  Cripp’s  Plan.   This accepted   the  principle  of  self-determination   but   it contained  numerous pitfalls which imperilled the future  of India.   The Mission failed but its failure gave a new  turn to  India’s political struggle.  In spite of  the  deepening crisis of war no further serious effort was made .to resolve the political dead lock in India until the Simla  Conference of  1945.  This also proved abortive.  After the  assumption of power by the Labour Government in England a Parliamentary delegation  visited India and later the Secretary  of  State announced the Government’s decision to send a delegation  of three Cabinet 109      Ministers  to India.  In May 1946 the  Cabinet  Mission issued  the  memorandum  dated 12th May 1946  in  regard  to States’  treaties  and  paramountcy; it  affirmed  that  the rights  of the States which flowed from the relationship  of the Crown  would  no  longer exist  and  that  the  rights surrendered  by  the  States to the  Paramount  Power  would revert  to the States.  The plan provided for the entry  of the States to the proposed Union’ of India in the  following manner : (a)  Paramountcy  could neither be retained by  the  British Crown nor transferred to the new Government.  But  according to  the assurance given by the Rulers that they  were  ready and willing to do so, the States were expected to co-operate

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in the new development of India. (b)  The precise form which the co-operation of  the  States would  take  must  be a matter for  negotiation  during  the building up of the new constitutional structure. (c) The States were to retain all subjects and powers  other than  those  ceded to the Union,  namely,  Foreign  Affairs, Defence and Communications.  (d)  In  the  preliminary  stage  the  States  were  to  be represented  ’on the Constituent Assembly by  a  Negotiating Committee. The Viceroy Lord Mountbatten made it clear that the  British Government  resolved  to transfer power by June 1948  and  a solution had to be found in a few months’ time.  On June  3, 1947  he  announced that His Majesty’s Government  would  be prepared to relinquish power to two Governments of India and Pakistan   Oil  the  basis  of  Dominion  Status  and   this relinquishment  of power would take place much earlier  than June 1948.  In regard to States the plan laid down that  the policy of His Majesty’s Government towards the Indian States contained  in  the Cabinet Mission Memorandum  of  May  1945 remained unchanged.  ’At a Press Conference held by him Lord Mountbatten  gave it out that the date of transfer of  power would be about 15th August, 1947. The  Indian  Independence  Act enacted for  the  purpose  of giving  effect to the plan envisaged as above, received  the Royal Assent on 18th July 1947.  It provided for the setting up of two independent Dominions as and from the 15th  August 1947.  Section 2 of the Act defined what the territories  of the   two  Dominions  would  be  S.  6  provided  that   the Legislature of each of the new Dominions would have power to make laws for that Dominion. Under s. 7(1)(b) the suzerainty of  His Majesty over the Indian States would lapse and  with it  all treaties and agreements in force at the date of  the passing  of  the Act between His Majesty and the  Rulers  of Indian States, all functions exercisable by His 110 Majesty  at  that date with respect to  Indian  States,  all obligations  of  His Majesty existing at that  date  towards Indian  States  or the Rulers thereof.  Under  cl.  (c)  any treaties  or agreements in force at the date of  passing  of this Act between His Majesty and any person having authority in the tribal areas were also to lapse.  Section 9 empowered the  Governor-General, to promulgate orders for making  such provisions  as appeared to him to be necessary or  expedient for  bringing the provisions of the Act into effective  ope- ration, for dividing between the new Dominions, and  between the  new  Provinces  to be constituted under  the  Act,  the powers,  rights,  property, duties and  liabilities  of  the Governor-General  in Council, etc.  Even before the  passing of  the  Act  Lord  Mountbatten  was  debating  the  States’ problems  with  Indian leaders.  He put forward  to  them  a peaceful  settlement  he had in mind, namely  to  allow  the Rulers to retain their titles, extra territorial rights. and personal  property and civil list in return for  which  they would  join  a Domiion-most of them India, and  a  few  like Bahawalpur Pakistan only three subjects of defence  external affairs  and communications being reserved for  the  Central Government.  A draft Instrument of Accession was prepared in the  States  Department  of  the  Dominion  of  India.   The Instrument  of Accession took three forms according  to  the existing  status and powers of the various States.   By  the Instrument  of  Accession the States were to accede  to  the Dominion  of India on the three subjects, Defence,  External Affairs  and  Communications  and  their  content  being  as defined  in  Schedule VII of the Government  of  India  Act,

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1935.   Shortly  before the 15th August  ’with  the  helpful efforts of Lord Mountbatten negotiations were concluded  and barring  Hyderabad,  Kashmir  and Junagadh  all  the  States within  the  geographical  limits of the  Indian  Union  had acceded  to  the Indian Dominion by the  15th  August.   The accession  of  the Indian States to the  Dominion  of  India established  a new organic relationship between  the  States and the Government of India. The  second phase which rapidly followed involved a  process of  two-fold  integration,  consolidation  of  States   into sizable administrative units and their democratization. With the advent of independence in India 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 Rule to the people. So far as the larger units were concerned democratization of administration  could  be a satisfactory solution  of  their constitutional problem.  However in the case of small States responsible Government could have only proved a farce.   The Rulers  of  smaller States were in no position to  meet  the demand. for equating 111 the  position of their people with that of their  countrymen in  the  Provinces. Without doubt the  smaller  State  units could  not have continued in modern conditions  as  separate entities;  integration  provided the only  approach  to  the problem. The  integration of States did not however follow a  uniform pattern.   Merger of States in the Provinces  geographically continuous  to them was one form of integration; the  second was conversion  of States into Centrally administered areas; and  the  third form was the creation of  new  viable  units known  as Unions of States. Each of these forms was  adopted according to size, geo graphy and other factors relating  to each State or group of States. The  problem of integration was first faced in Orissa  where the  States  formed  scattered bits  of  territory  with  no geographical  contiguity.  After long discussions  with  the Rulers  of  the  States  and  the  Minister  of  the   State Department it was eventually decided to integrate the  small States with the adjoining Provinces.  Agreements were signed by  the  Rulers  of these States in  December  1947  and  on subsequent  dates  providing  for cession  by  them  to  the Dominion of India full and exclusive authority, jurisdiction and power in relation to the governance of their States. There were several groups of States which with due regard to geographical, linguistic, social and cultural affinities  of the  people  could be consolidated into sizable  and  viable units  consisting  entirely  of  States.   In  such   cases, territories  of States were united to form Unions of  States on  the basis of full transfer of power from the  Rulers  to the  people.   A  special feature of these  Unions  was  the provision  for the Rajpramukh as the constitutional head  of the State who was to be elected by a Council of Rulers.  The United  State of Gwalior, Indore and Malwa and  other  small States came to be known as Madhya Bharat of which the  Ruler of Gwalior became the Rajpramukh.  Integration of  Rajputana was completed in three stages. As  a  result of the application of the various  merger  and integration schemes 216 States were merged in Provinces,  61 States  were taken over as Centrally administered areas  and 275 States were integrated into the Union of States. The  process of the merger of the States with the  Provinces or  their  constitution into Centrally  Administered  areas,

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transfer  of power to the people was automatic in  that  the merged States became part of the Administrative units  which were governed by the popular Government of the Provinces and the Centre as the case might be.  So far as the Provincially merged  States were concerned, under the  arrangements  made virtually by the statutory 112 orders issued under S. 290-A of the Government of India  Act 1935 provision was made for the representation of the people of  the  merged States in the  Provincial  Legislature.   As regards  the Unions of States wherever  practicable  popular interim   ministries   were   set  up   to   conduct   their administration. The Instruments of Merger and the covenants establishing the various  units  of  States were in  the  nature  of  overall settlements  with the Rulers who had executed  them.   While they  provided  for the integration of States  and  for  the transfer of powers from the, Rulers they also guaranteed  to the Rulers privy purses succession to the gaddi, rights  and privileges  and  full ownership, use and  enjoyment  of  all private properties bellinging to them as distinct from State properties. The   above  is  a  thumb-nail  sketch  of   the   political developments and the major political events between 1773 and 1948  or  1949.   Most of the historical  account  is  taken verbatim from V. P. Menon’s "Story of Integration of  Indian States"  and the White Paper on Indian Constitution-both  of which  were freely referred to by counsel appearing  in  the case.   In  the above setting I now propose to  examine  the implications  of the important documents to which the  Ruler of Gwalior became a party. An  Instrument  of  Accession was signed  by  the  Ruler  of Gwalior  on  the 15th August, 1947 in the  exercise  of  his sovereignty in and over his State containing inter-alia  the following material terms:- "I declare that I accede to the Dominion of India. with  the intent  that  the Governor-General of  India,  the  Dominion Legislature,  the  Federal  Court  and  any  other  Dominion authority established for the purpose of the Dominion shall, by virtue of this instrument of Accession but subject always to  the  terms  thereof, and for the purposes  only  of  the Dominion  exercise  in  relation  to  the  State......  such functions  as  may  be  vested  in  them  by  of  under  the Government of India Act, 1935. Clause  31  accept  the matters specified  in  the  Schedule hereto  as  the matters with respect to which  the  Dominion Legislature  may  make  laws for the  State.  (The  schedule mentioned  contained several matters of which the main  were defence, external affairs and communications). Clause  5. The terms of this Instrument of  Accession  shall not  be  varied by any amendment of the Act  (Government  of India Act) or the Indian Independence Act, 1947 unless  such amendment is accepted by me, by an instrument  supplementary to this instrument. Clause 7. Nothing in this Instrument shall be deemed to com- mit  me in any way to acceptance of any future  constitution of India 113 or to, fetter my discretion to enter into arrangements  with the Government of India under any such future constitution. Clause 8. Nothing in this Instrument affects the continuance of  my  sovereignty  in and over this  State,  or,  save  as provided  by or under this Instrument, the exercise  of  any powers, authority and right,,, now enjoyed by me as Ruler of this State or the validity of any law at present in force in

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this State. Clause 91 hereby declare that I execute’ this Instrument  on behalf  of  this  State  and  that  any  reference  in  this Instrument  to. me or to ;The Ruler of the State, is  to  be construed   as  including  a  reference  to  my  heirs   and successors." This  Instrument  was accepted by  the  Governor-General  of India and signed by him. On  22nd April 1948 a document was executed by the Ruler  of Gwalior,  Indore and certain other States in  Central  India for the formation of the United State of Madhya Bharat.  The recitals to the document show that the Rulers were  entering into a covenant on the terms mentioned therein as they  were convinced that the welfare of the people of the region could best  be  secured  by the establishment of a  State  with  a common  executive, legislature and judiciary, and they  were resolved to entrust to a Constituent Assembly consisting  of elected  representatives of the people the drawing up  of  a democratic constitution of the State within the framework of the  Constitution of India.  By Article II  the  Covenanting States agreed to unite and integrate their territories  into one State with a common executive, legislature and judiciary and  to include therein any other State the Ruler  of  which agreed  with the approval of the Government of India to  the merger  of  his  State in the  United  State.   Article  III provided for the constitution of a Council of Rulers with  a President  known  as the Rajpramukh.   Article  IV  provided inter  alia  for  payment of a sum of Rs.  2,50,000  to  the Rajpramukh  from  the revenues of the United State  as  con- solidated  allowance.   Under  Art.  V there  was  to  be  a Council of Ministers to aid and advise the Rajpramukh in the exercise  of  his functions.  Under Art.  VI the  Rulers  of each  Covenanting State agreed as soon as possible  and  not later than the 1st July 1948 to make over the administration of  his  State  to  the  Rajpramukh  whereupon  all  rights, authority  and  jurisdiction belonging to  the  Ruler  which pertained  to  or were incidental to the Government  of  the Covenanting  State were to vest in the United State and  all the assets and liabilities of the Covenanting State were  to be  the assets and liabilities of the United  State.   Under Art.   VIII the Rajpramukh was to execute on behalf  of  the United  State, as soon as practicable and in any  event  not later  than  15th June 1948 an Instrument  of  Accession  in accordance with the provisions of s. 6 of the 114 Government  of  India  Act, 1935 and he  was  to  accept  as matters with respect to which the Dominion Legislature might make laws for the United State all the matters mentioned  in List I and List III of the Seventh Schedule to the said Act, except the entries in List I relating to any tax or duty, by such  instrument.  Under  Article  XI  the  Ruler  of   each Covenanting  State  was to be entitled to  receive  annually from  the revenues of the United State for his privy,  purse the  amount  specified  against that  Covenanting  State  in Schedule  I  :  provided  that the  sums  specified  in  the Schedule in respect of the Rulers of Gwalior and Indore were to be payable only to the Rulers of these States and not  to their   successors  for  whom  provision  was  to  be   made subsequently.  The  said amount was intended  to  cover  all expenses of the Ruler and his family including  expenses  of his residence, marriage and other ceremonies and subject  to the  provisions of paragraph I were neither to be  increased nor  reduced for any reason whatever. Under paragraph 3  the Rajpramukh  was to cause the said amount to be paid  to  the Ruler  in  four equal instalments at the beginning  of  each

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quarter in advance. Under paragraph 4 the said amount was to be  free of all taxes whether imposed by the  Government  of the  United State or by the Government of India. Under  Art. XII  the Ruler of each Covenanting State was to be  entitled to  the  full ownership, use and enjoyment  of  all  private properties (as distinct from State properties) belonging  to hi-in  on the date of his making over the administration  of that  State  to the Rajpramukh. Under paragraph  3  of  this Article  if  any  dispute arose as to whether  any  item  of property   was  the private property of the Ruler  or  State Property,  it  was  to be referred to  such  person  as  the Government of India might nominate in consultation with  the Rajpramukh  and his decision was to be final  and   binding. Art. XIH ran as follows .-      "   The  ruler of each Covenanting State, as  also  the members of his family, shall be entitled to all the personal privileges,  dignities and titles enjoyed by  them,  whether within  or outside the territories of the State  immediately before the 15th day of August, 1947."  Art. XIV provided  (1)  The  succession, according  to  law  and               custom to the gaddi of each Covenanting State,               and   to  the  personal  rights,   privileges,               dignities and titles of the Ruler thereof,  is               hereby guaranteed.  (2) Every question of disputed succession  in               regard to a Covenanting State shall be decided               by the Council of Rulers after referring it to               a Bench consisting of all the available Judges               of  the High Court of the United State and  in               accordance  with  the opinion given,  by  that               High Court.               115               The document ends with the following paragraph               "The Government of India hereby concur in  the               above   Covenant   and   guarantee   all   its               provisions.  In confirmation whereof Mr. V. P.               Menon, Secretary to the Government of India in               the Ministry of States, appends his  signature               on  behalf  and  with  the  authority  of  the               Government of India." On  July 19, 1948 ’the Ruler of Gwalior who had then  become the Rajpramukh of the United State of Madhya Bharat executed a  revised Instrument of Accession reciting the covenant  of April 1948 referring in particular to Art.  VIII of the same and  declaring.  that he as Rajpramukh was acceding  to  the Dominion  of India with intent that the Governor-General  of India,  the Dominion Legislature the Federal Court  and  any other Dominion authority established for the purpose of  the Dominion would by virtue of the instrument of Accession  but subject  always  to the terms thereof and for  the  purposes only  of  the Dominion exercise in relation  to  the  United State  such functions as may be vested in them or under  the Government  of India Act, 1935.  By cl. (2) he  assumed  the obligation  of  ensuring that due effect was  given  to  the provisions  of  the Act (the Government of India  Act  1935) within  the United State so far as they were  applicable  by virtue  of  the  Instrument of Accession.   By  cl.  (3)  he accepted  all matters enumerated in List I and List  III  of the  Seventh  Schedule to the Act as matters in  respect  of which  the  Dominion  Legislature might make  laws  for  the United  State.  This was of course subject to some  provisos which  it  is not necessary to set out.  Under cl.  (6)  the terms  of the Instrument of Accession were not to be  varied by  any amendment of the Act or the Indian Independence  Act

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1947  unless such amendment was accepted by the  Rajpramukh. Under  cl.  (8)  it  was made  clear  that  nothing  in  the instrument  was to be deemed too commit the United State  in any way to acceptance of any future Constitution of India or to  fetter  the discretion of the Government of  the  United State  to  enter into arrangements with  the  Government  of India under any such future Constitution. This  Instrument of Accession was duly accepted by the  Gov- ernor-General of India. The Constituent Assembly was in session about this time  and the  future  Constitution of India was being  discussed  and given a final shape and form.  The provisions of the Constitution had been finally settled before  the  24th  November  1949, the  date  on  which  the Rajpramukh  made a solemn declaration that the  Constitution of India shortly 116 to be adopted by the Constituent Assembly of India was to be the  Constitution for Madhya Bharat, as for the other  parts of  India and was to be enforced as such in accordance  with the   tenor  of  its  provisions.   The  preamble   to   the proclamation shows that the Rajpramukh took the step in  the best  interest  of the, State, of Madhya  Bharat  which  was closely  linked with the rest of India by the  community  of interests in the economic. political and other fields and it was  felt  desirable that  the  Constitutional  relationship established  between  the  State of Madhya  Bharat  and  the Dominion  of India should not only be continued but  further strengthen  and the Constitution of India as drafted by  the Constituent Assembly of India, which included duly appointed representatives of the, States provided a suitable basis for doing so. The Constitution of India was finally adopted by the Consti- tuent Assembly on the 26th November 1949.  Under Art. 394 of the  Constitution fifteen of its articles were to come  into force   at  once  and  the  remaining  provisions   of   the Constitution  were  to come into force on the  26th  day  of January  1950  referred  to  in  the  Constitution  at   the commencement  of the Constitution.  By Art. 395  the  Indian Independence  Act 1947 and the Government of India Act  1935 together  with all enactments amending or supplementing  the latter were repealed. The   above   gives  a  fairly  complete  picture   of   the disappearance  of the former Indian States which formed  the combination  of the United State of Madhya Bharat  with  the commencement of the Constitution of India as also the rights and  privileges  of the Rulers save  as  expressly  provided otherwise  in  the  Constitution itself,  or  the  covenants agreements ’etc to the extent necessary. The  above pattern did not however apply to all  the  Indian States.  A number of small States of Orissa executed  Merger agreements  which  were  confirmed on behalf  and  with  the authority  of the Governor-General by the Secretary. to  the Ministry  of States.  These agreements were entered into  in December 1947.  By Art.  I of the agreement the Raja of  the State  ceded to the Dominion Government full  and  exclusive authority,  jurisdiction and powers for and in  relation  to the  governance  of  the State and agreed  to  transfer  the administration  of the State to the Dominion  Government  on the  1st  January,  1948.  As from that  date  the  Dominion Government  was to be competent to exercise the said  powers and  authority and jurisdiction in such manner  and  through such  agency as it might think fit.  Under Art. 11 the  Raja was to be entitled to receive from the revenues of the State annually  for the privy purse a certain sum of  money  which

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was  to cover all the expenses of the Ruler and this  family etc.  Under Art.  III he was to be 117 property  (as distinct from State properties)  belonging  to him on the date of the agreement.  ’Under Art.  IV the  Raja and  certain  other  persons  were to  be  entitled  to  all personal  privileges  enjoyed  by  them  whether  within  or outside the territories of the State immediately before  the 15th  August,  1947.   By Art.  V  the  Dominion  Government guaranteed the succession according to law and custom to the gaddi  of  the  State and to  the  Ruler’s  personal  rights privileges, dignities and titles. Similar  Merger  agreements  were signed by  the  Rulers  of Gujarat and Deccan States.  The terms of the agreements were on similar lines. There were however departures from the above in some  cases. For  instance,  the  Nawab  of  Bhopal  executed  a   Merger agreement on the 30th April, 1949 whereby the administration of  the State of Bhopal was to be taken over and carried  on by  the Government of India and for a period of  five  years next  after  the  date  of transfer  the  State  was  to  be administered  as  a  Chief  Commissioner’s  Province.    The personal  rights  and privileges and the  privy  purse  were secured  as  in the case of other Rulers.   With  regard  to succession to the throne of Bhopal State it was agreed  that the same would be governed and regulated in accordance  with the  provisions  of the Act known as the Succession  to  the Throne of Bhopal Act 1947.  It may be mentioned that in  the case  of  Bhopal Art.  III of the  agreement  provided  that although.  the then Ruler was to get a sum of Rs.  11  lakhs per  annum  free of all taxes, each of his  successors  with effect  from  the date of succession was to be  entitled  to receive  for his privy purse a sum of Rs. 9 lakhs per  annum free of all taxes. There was some similar provision in the cases of Mysore  and Hyderabad but it is hardly necessary for the purpose of this series of petitions to go into the differences.  There  were separate  agreements with the Nizam of  Hyderabad  regarding the privy purse, private property and rights and  privileges entered into on the 25th January 1950.  Under Art.  I of the agreement  with the Nizam the said Ruler was to be  entitled to  receive  annually for his privy purse a sum  of  Rs.  50 lakhs free of all taxes.  But with regard to his  successors provision  was to be made subsequently by the Government  of India.   Under Art.  IV the Government of  India  guaranteed the  succession according to law and custom to the gaddi  of the  State.  A very similar agreement was entered into  with the Maharaja of Mysore on the 23rd 1 January 1950.  The then Maharaja  was to receive Rs. 26 lakhs free of all  taxes  as and by way of privy purse per annum but provision was to  be made subsequently by the Government of  India with regard to his successor. 118 For  an other instance of integration through Merger  Agree- ment  I  may refer to the Kutch Merger Agreement  dated  4th May,  1948  between the Governor-General of India  and  the, Maharao of Kutch.  The preamble shows that the agreement was being  entered  into in the best interests of the  State  of Kutch as well as of the the Dominion of India to provide for the  administration of said State by or under the  authority of  ’the  Dominion Government.  Under Art.  I  the,  Maharao ceded   to  the  Dominion  Government  full  and   exclusive authority,  jurisdiction and powers for and in  relation  to the  governance  of  the State and agreed  to  transfer  the administration  of the State to the Dominion  Government  on

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the  1st  day of June 1948.  As from that  day  the  Dommion Government was to be competent to exercise the said  powers, authority  and jurisdiction in such manner and through  such agency as it might think fit.  By Art. 2 the Maharao was  to be   entitled   to  continue  the  same   personal   rights, privileges, dignities and titles which he would have enjoyed had the agreement not been made.  Under Art.. 3 the  Maharao was to be entitled with effect from the said day to  receive from the revenues of the State annually for his ,privy purse the sum of Rs. 8 lakhs free of all taxes.  The Government of India  undertook that the said sum of Rs. 8 lakhs  would  be paid  to the Maharao in four equal installments in  advance. Art  4  provided for the retention by the  Maharao  of  full ownership, use .and enjoyment of all private properties  (as distinct from State properties).  Under Art. 6 the  Dominion Government guaranteed the succession of the State  according to  law  and  custom of the gaddi of the State  and  to  the Maharao  his  personal rights,  privileges,  ,dignities  and titles.   As the original Government of India Act  1935  did not provide for any Merger agreement steps had already  been taken  towards-that end.  The Extra Provincial  Jurisdiction Act  1947 was passed giving power to the Central  Government to ,exercise extra Provincial jurisdiction over a State only if  it  had  by a treaty agreement etc.  acquired  full  and exclusive  authority  and jurisdiction and power for  an  in relation to the governance of the State.  The Government  of India Act 1935 was also amended by insertion of section 290- A and 290-B. The  States’ Merger (Governors’ Provinces) Order,  1949  was promulgated  on  the 27th July 1949 under s.  290-A  of  the Government of India Act for the administration of the States specified  in  the  Schedule  together  with  the  adjoining Governors’  Provinces, Under Cl. 3 the States  specified  in each  of the Schedules were to be administered as  from  the appointed day in all respects as if they formed part of  the Provinces  specified  in the heading of that  Schedule  and, accordingly,  any  reference to an Acceding  State,  in  the Government  of India Act, 1935, or in any Act  or  Ordinance made  on or after the appointed day was to be  construed  as not 119 including  a reference to any of the merged States, and  any reference  in  any  such Act or Ordinance  as  aforesaid  to Provinces  specified in that Schedule.  Under Cl. 4 all  the law  in  force in a.,. merged State or in any  part  thereof immediately  before the appointed day including orders  made under  section  3  or section  4  of  the  Extra-Provincial- Jurisdiction  Act,  1947  was to  continue  in  force  until repealed, modified or amended by a competent Legislature  or other competent authority   Under Cl. 5 all property wherever situate  which,  immediately before the  appointed  day  was vested  in  the  Dominion Government  for  purposes  of  the governance  of a merged State was as from that date to  vest in  the  Government  of the absorbing  Province  unless  the purposes for which the property was held immediately  before the appointed daywere central purposes. Another  Order  known as the Stages  Merger  (Chief  Commis- sioners’ Provinces) Order, 1949 was promulgated on the  29th July  1949.  The State of Kutch along with other States  was to  be administered by and under this Order in all  respects as if they were a Chief Commissioner’s Province to be  known as the Chief Commissioner’s Province of Kutch. The unification of India however thus achieved was not as  a result   of  negotiations  across  the  table  nor  was   it accomplished  overnight  in the way ordinary  contracts  and

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engagements are entered into after some deliberation.   Full credit for the same goes not only to the Ministry of  States led  by Sardar Vallabhbhai Patel but also to the  Rulers  of the  hundreds  of  Indian States who realised  that  in  the interest  of  the  people  of their  States  as  also  their personal interest it was necessary for them to come to terms with  the  Government of India.  They agreed  to  part  with their States and the territories so far governed by them  on the  basis  of the assurances and guarantees  given  by  the Dominion   of   India  before  the   commencement   of   the Constitution by the Government of India as contained in  the Constitution itself.  It will not be out of place to set out what  Sardar  Vallabhbhai  Patel said  in  the  Constitutent Assembly  on 12th October 1949 in regard to the  settlements with the Rulers.  A portion of his speech is quoted as below               "In the past, in most of the States there  was               no distinction between the expenditure on  the               administration  and the Ruler’s  privy  purse.               Even  where the Ruler’s privy purse  had  been               fixed no effective steps were taken to  ensure               that the expenditure expected to be covered by               the   privy purse  was  not,   directly   or               indirectly  charged  on the  revenues  of  the               State.   Large amounts, therefore, were  spent               on  the  Rulers on the members of  the  ruling               families  . . . . the privy purse  settlements               made,               120               by   us   will  reduce  the  burden   of   the               expenditure,  on the Rulers to at  least  one-               fourth  of the previous figure.  Besides,  the               States  have benefited very considerably  from               the process of integration in the form of cash               balances   inherited   by   them   from    the               Rulers.  .  .  .  I  shall  now  come  to  the               political and moral aspect of the settlements.               In  order to view the payments  guaranteed  by               us’  in their correct perspective, we have  to               remember   that  they  are  linked  with   the               momentous  developments  affecting  the   most               vital  interests of this country.  These  gua-               rantees form part of the historic  settlements               which enshrine in them the consummation of the               great  ideal  of geographical,  political  and               economic unification of India, an ideal  which               for  centuries  remained a distant  dream  and               which  appeared as remote and as difficult  of               attainment as ever even after the advent  of               Indian  independence  . . .  Human  memory  is               proverbially short.  Meeting in October  1949,               we  are  apt to forget the  magnitude  of  the               problem.   which  confronted  us   in   August               1947   .  .  .  .  the  so-called   lapse   of               paramountcy  was a part of the plan  announced               on  June  3, 1947 which was  accepted  by  the               Congress.   We agreed to this  arrangement  in               the same manner as we agreed to the  partition               of  India.  We accepted it because we  had  no               option  to  act otherwise.   While  there  was               recognition  in the various  announcements  of               the British Government of the fundamental fact               that each State should link up its future with               that Dominion with which it was geographically               cotinguous,   the  Indian   Independence   Act               released the States from all their obligations

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             to  the  British  Crown..........  They   (the               British    Crown)    even    conceded     that               theoretically  the  States were free  to  link               their  future  with  whichever  Dominion  they               liked,  although, in saying so, they  referred               to  certain  geographical  compulsions   which               could not be evaded.  The situation was indeed               fraught  with immeasurable  potentialities  of               disruption, which some of the Rulers did  wish               to, exercise their technical right to  declare               independence   and   others   to   join    the               neighboring  Dominion.   If  the  Rulers   had               exercised  their right in such an  unpatriotic               manner,  they  would have  found  considerable               support  from influential elements hostile  to               the  interests of this country . . . . It  was               in  this  unpropitious  background  that   the               Government of India invited the Rulers of  the               States to accede on three subjects of Defence,               External  Affairs and Communications.  At  the               time  the  proposal  was put  forward  to  the               Rulers,  an assurance was given to  them  that               they  would retain the status quo  except  for               accession on these               121               subject. . . . There was nothing to compel  or               induce  the  Rulers to merge the  identity  of               their States. Any use of force would have  not               only been against our professed principles but               would have also caused serious  repercussions.               If  the, Rulers had elected to stay out,  they               would  have continued to draw the heavy  Civil               Lists which they were drawing before and in  a               large   number  of  cases  they   could   have               continued  to  enjoy unrestricted use  of  the               State  revenues.  The minimum which  we  could               offer to them as quid pro quo for parting with               their  ruling powers was to guarantee to  them               privy  purses  and  certain  privileges  on  a               reasonable and defined basis. The privy  purse               settlements  are  therefore in the  nature  of               consideration for the surrender by the  Rulers               of  all their ruling powers and also  for  the               dissolution   of   the  States   as   separate               units  . . . . The capacity for  mischief  and               trouble  on  the  part of the  Rulers  if  the               settlement  with  them  would  not  have  been               reached on a negotiated basis was far  greater               than  could be imagined at this stage. Let  us               do justice to them; let us place ourselves  in               their  position and then assess the  value  of               their   sacrifice.   The   Rulers   have   now               discharged  their part of the  obligations  by               transferring all ruling powers and by agreeing                             to  the 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  purses   ire   fully               implemented.  Our failure to do so would be  a               breach  of faith and seriously  prejudice  the               stabilization of the new order."               it  may not be out of place to quote from  the               debates in the Constituent Assembly which bear               upon the interpretation of Art.  ’363.  Before

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             the  Constitution  finally took shape  in  the               draft, this article was numbered as 302-AA and               article  143  was numbered as 119 Shri  T.  T.               Krishnamachari who moved for the insertion  of               Art. 302-AA said in the course of his speech :                "  .....it is self explanatory.  The idea  is               to   bar  the  jurisdiction  of   the   courts               including  the  Supreme  Court  in  regard  to               adjudicating  in respect of any disputes  that               might  arise  out of  any  treaty,  agreement,               covenant,  engagement, sanad or other  similar               instruments that might have been entered  into               by the Government of the Dominion of India  or               by any predecessor Government.  "               Questioned by a member as to who would decide,               T. T. Krishnamachari replied               122               The idea is that the court shall not decide in               this particular matter.  It is subject only to               the  provisions  of  Art.  119  by  which  the               President may refer the matter to the  Supreme               Court and ask for its opinion and the  Supreme               Court  would  be  bound  to  communicate   its               opinion  to  the President on  any  matter  so               referred by him.  The House will also remember               that   there  are  a  few  articles   in   the               Constitution, specifically 302-A (the  present               Art.  291)  and 267-A (the present  Art.  362)               where   there   are   references   to    these               agreements,  covenants, sanads etc.  and  even               these  are precluded from adjudication by  any               court.   The House will recognise that  it  is               very necessary that matters like these  should               not  be  made a matter of  dispute  that  goes               before  a court and one which would well  nigh               probably upset certain arrangements that  have               been   recommended  and  agreed  to   by   the               Government  of India in determining the  rela-               tion  between  the rulers of  States  and  the               Government of India in the transitory  period.               After the Constitution is passed, the position               will  be  clear.  Practically all  the  States               have  come within the scope of Part  VI-A  and               they  will  be governed by the  provisions  of               this  Constitution  and, excepting so  far  as               certain  commitments are positively  mentioned               in  the  Constitution, and as I said  the  two               Articles 267-A and 302-A the covenants will by               and  large  not  affect  the  working  of  the               Constitution; and it is therefore necessary in               view  of  the  vast  powers  that  have   been               conceded in this Constitution to the judiciary               that  anything  that has occurred  before  the               passing  of this Constitution and which  might               incidentally  be operatable after the  passing               of  the  Constitution must not  be  a  subject               matter  of  a dispute in a court  of  law.   I               think   that  Members  of  this   House   will               understand   that  it  is  a  very   necessary               provision  so as to save unnecessary  disputes               by people which might feel that they have been               affected or injured and who would rush to  a               court to make the court recognise such  rights               and  other  similar matters  which  have  been               practically extinguished by the provisions  of

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             this  Constitution  excepting  in  so  far  as               certain articles of the Constitution preserved               them." There was also some discussion with regard to the definition of "Ruler" and "Rajpramukh" which figured in Art. 303 of the draft Constitution.  According to Dr. B. R. Ambedkar the de- finition  of  ’Ruler’  was intended  only  for  the  limited purpose of’ making payments out of the privy purse.  It  had no other reference at all.  He also said that the expression was  deliberately  used  in  order  to  give  the  power  of recognition to the President. 123 After   referring  to  the  historical  background  of   the settlement in W.P. No. 376 of 1970 takes note of the attempt made  to amend the Constitution by the Constitution  (Twenty Fourth Amendment), Bill 1970 passed by the Lok Sabha on  2nd September 1970.  It was however rejected by the Rajya  Sabha on  the 5th September, 1970.  The same night  the  President signed  an  instrument withdrawing recognition  of  all  the Rulers and orders were issued for and on his behalf to  each and  every Ruler in the country.  According to The  petition the order of the 6th September violated Articles. 14, 19 (1) (f),  21 (as per amendment allowed) and 31 (1 ) and. (2)  of the Constitution.  The order was dubbed as unconstitutional, ultra vires, void and inoperative, arbitrary, malafide and a fraud  on the Constitution on various grounds formulated  in paragraph 20, the notable ones being as follows :- (1)  Art. 291 embodied the Constitutional acceptance and re- cognition of the guarantees or assurances regarding tax-tree privy purses., The  privy  purse  guaranteed by the  Government  under  the Merger  agreements  or Covenants were  further  assured  and guaranteed   by   the  Constitution  and  charged   on   the Consolidated  Fund of India.  Arts. 291 and  362  themselves created new and independent rights.  The pledge to pay privy purses  and  the  guarantee regarding  privileges  etc.  are inseverable   from  these  accessions  and   mergers.    The obligation  to  pay  privy purses  and  the  said  guarantee regarding  privileges  etc. which are inseverable  from  the accession  and merger cannot be abolished by any  law,  much less by any executive action. (ii) (1) The President of India passed the order withdrawing the  recognition  of  the petitioner and  the  other  Rulers without  applying  his mind to the question of  legality  or propriety  of the Order.  The whole and only object  of  the Order  was to deprive the petitioner and the other Rules  of their privy purses and their personal rights and privileges. The  derecognition of all the Rulers en masse is itself  the clearest possible proof that the whole object is to  abolish the  institution of Rulership altogether and all the  rights and. privileges attached thereto. (iv) Under  the agreements executed between the Dominion  of India and the Rulers and the covenants concurred in and gua- ranteed  by  the Dominion of India, a Ruler is  entitled  to privy  purse  of  a  stipulated amount  and  to  rights  and privileges which he enjoyed before the 15th August 1947  and succession  to  his ’gaddi" in accordance with the  law  and custom of the family was guaranteed.  Once the President has recognised  a person as entitled to receive privy purse  and to be accorded rights and privileges due to, him as a Ruler, there  can  be  no  interference  with  his  right  to   re- 744Sup.CI/71. 124 ceive  the  privy  purse  or  with  his  other  rights   and privileges.    The  Constitution  contains  no   substantive

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provision  conferring on the President a right to  recognise or not to recognise a Ruler or to withdraw recognition.  All that  the  Constitution  requires is an  indication  of  the Indian  States  which  are recognised  as  such  under  Art. 366(15)  and  a Ruler with reference to such a  State  under Art.  366(22).   Arts. 366(22) and 366(15) cast upon  him  a power or authority but a constitutional duty to recognise an existing  fact and continue to do so in accordance with  the provisions of the covenants and agreements.  The Order being in  clear  contravention of Arts. 291, 362 and  366(22)  was also  in contravention of Art 53(1) which required that  the executive  powers of the Union vesting in the  President  be exercised  by him in accordance with the provisions  of  the Constitution. (v)  The  right to receive privy purse and other  rights  of Rulers  constitute  property  within  the  meaning  of  Art. 19(1)(f)  and  31.  Deprivation of privy  purses  and  other rights  without authority of law contravenes Art.  31(1)  as the petitioner was to be expropriated of his moneys and his right to receive money periodically by way of privy    without any compensation. (vi) The Privy purse was in substance and in reality compen- sation  for  the  transfer by Rulers  of  inter  alia  their properties. (vii)     There was a duty cast upon the Government of India to  respect  and  implement the  provisions  of  the  Merger agreements and the Covenants. The  petitioner’s  further contentions were that  the  order left  the Merger agreements and covenants untouched and  did not  in  any way abrogate or affect any of  the  assurances, guarantees   and  obligations  under  the   agreements   and covenants.  According to the petition Art. 363 covered cases of  a dispute arising out of a settlement with a Ruler or  a dispute  in  respect of a right or obligation founded  on  a provision of the Constitution relating to such a  settlement but  it  did  not  cover the  case  of  policy  embodied  in legislative  or administrative action to abolish  altogether the  institution of Rulership and its rights and  privileges and of privy purses. The prayers formulated in the petition were as follows (a)  A  writ,  direction  or  order under  Art.  32  of  the Constitution declaring-the Order dated 6th September 1970 to be  unconstitutional,  ultra vires and void and  further  to quash the Order; (b)  a   writ,  direction  or  order  declaring   that   the petitioner  continues  to be the Ruler and continues  to  be entitled  to the privy purse and to his personal rights  and privileges as a Ruler; (c)  a writ, direction or order directing the Union of India to continue to pay the privy purse to the petitioner and  to continue’ 125 to  recognise  the  Rulership and the  personal  rights  and privileges  of the petitioner and to implement  and  observe the provisions of the covenant/Merger agreement entered into with the petitioner. In  the  forefront  of the counter affidavit  of  the  Joint Secretary to the Government of India in the Ministry of Home Affairs is the contention that "by reason of the  provisions of   Art.  363  of  the  Constitution  this  Court  has   no jurisdiction   to   entertain  the  petition".    The   main propositions  out forward in the said counter affidavit  are as follows .- (a)  By  the petition disputes had been raised  which  arose directly  out of the provisions of the relevant covenant  as

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also his alleged rights accruing under the provisions of the Constitution. (b)  The covenant was a political agreement among High  Con- tracting  Parties and an act of State and as such could  not form  the subject matter of any proceeding in any  municipal court.   The  guarantee given by the Dominion of  India  was only a political act and not a legal one. (c)  Neither the covenants nor the Merger agreements nor any provision  of the Constitution relating to the covenants  or the  Merger  agreements  confer  any  legal  right  on   the petitioner or on any erstwhile Ruler. (d)  The  covenant being a political agreement, the  alleged rights and obligations thereunder could not be and were  not perennial  and  were inherently temporary in  character  and liable, to be varied or repudiated in accordance with  State policy in the interests of the people. (g)  The  power  of  the President to recognise  or  not  to recognise a person as a Ruler was political in character and an incident of sovereignty.  The power included the power to recognise and the power to cease to recognise any person  as a Ruler. (k)  The relevant covenant being a political agreement among High  Contracting Parties and an-act of State, the  petition has no legal right to the gaddi or the privy purse or any of the  said privileges and as such neither the gaddi  nor  the privy purse or any of the said privileges is property within the meaning of Art. 19(1)(f) or Art. 31(1) or Art. 31(2)  of the Constitution. (1)  If  the State policy changed and the State decided  not to pay such political" pension in future, a dispute  arising from such decision was not justiciable in a municipal court. (m)  Rulership  or the succession thereto, the  privy  purse and  the said privileges were inter alia the subject  matter of  an  agreement and an agreement could not confer  on  the petitioner any fundamental right under the Constitution. 126 (n)  Art.  291 of the Constitution did not create any  legal right in a person.  It only laid down the source and  method of  payment of the privy purse.  The article in laying  down that the privy purse shall be charged on and paid out of the Consolidated  Fund  of India meant no more than  that  these sums would be sums within the meaning of Arts. 112(2)(a) and 113(1) of the Constitution and would not be submitted to the vote  of Parliament.  And secondly that such sums  would  be exempt  from  all  taxes on income.   Even  if  the  article created  a  legal  right  in  a  person  recognised  by  the President as a Ruler, to receive payment of privy purse Art. 363 barred the enforcement of such right. (o)  Art.  362 of the Constitution did not create or  impose any  legal obligation on Parliament or the Legislature of  a State  or  the  Union executive or the  State  executive  in respect of the said privileges and even with respect thereto Art. 363 barred jurisdiction of all courts in India. (p)  The concept of Rulership, the privy purses and the said privileges  unrelated  to any current functions  and  social purposes  have become incompatible with democracy,  equality and social justice in the context of India today.  Since the commencement  of the Constitution many things have  changed, many  hereditary  rights  and  unearned  incomes  have  been restricted  and  many privileges and vested  interests  have been done away with.  The question continuance of  covenants and  Merger agreements had been exercising the minds of  the Congress  Party  for many years past  and  the  Constitution (Twenty  Fourth  Amendment) Bill was  introduced  with  that object.

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All  the grounds set forth in paragraph 20 of  the  petition were controverted.  In particular it was said (a)  Art.  291 did not cast an obligation on the  Government to pay the privy purse and the obligation, if any; was not a legal obligation. (b)  The  Order of 6th September 1970 did not  violate  Art. 291  or  Art.  362.  To recognise or not  to  recognise  any person  as a Ruler was exercise of a political  power  which was not dependent on any provision of the Constitution. (c)  The covenants and Merger agreements were and  continued to be political agreements and acts of State which could not be enforced in a court of law by reason of Art. 363. (d)  Art.  366(22)  impliedly  conferred  a  power  on   the President  to  recognise or not to recognise a person  as  a Ruler and such a 127 power was a political power.  There was no provision in  the Constitution which conferred-on the petitioner or any of the erstwhile  rulers any rights to be recognised as  Ruler  and continues to be recognised as such or to privy purse or  any of the privileges. (e)  As  neither the petitioner nor any erstwhile Ruler  had or  now has any legal right to the privy purse or to any  of the  privileges  or  to  any of  the  alleged  other  rights enforceable in a court of law, there could be no question of the  impugned order infringing Art. 19(1)(f), Art. 31(1)  or Art.  31(2)  and  that  in any event  Art.  363  barred  the enforcement of any such alleged right. (f) The Rulers entered into the covenants and Merger  agree- ments  by  reason of political compulsion and in  their  own interests  and  not  on  the faith  of  any  undertaking  or guarantee  on  the  part  of the  then  Dominion  of  India. Neither  the petitioner nor any erstwhile Ruler  acted  upon any assurance or guarantee on the part of the Government  of India. On the other hand a fiduciary duty was cast upon the respondent  Government not to continue  Feudal  institutions and  anachronistic  systems  against the  interests  of  the people. (g)  The petitioner has no fundamental right as claimed  and Art. 363 barred adjudication by a court of law with  respect to the rights claimed. The  crucial  question  in  the  petition  is  whether   the petitioner  is  entitled  to a declaration  that  the  order withdrawing  his recognition as a Ruler is beyond the  scope of  any  executive  action  of  the  President.   The   only provision in the Constitution in which the recognition of  a person  as  a Ruler appears is Art.  366(22).   The  article being  a Code to the meaning of the words used in  the  Con- stitution we have to see exactly what it proposes to do  and what it achieves.  Unless a ruler can be identified for  the purposes of the Constitution Art. 291, Art. 362 and Art. 363 cannot  be applied.  Clause (22) fixes the identity  of  the Ruler  for  the purposes of the Constitution  as  a  Prince, Chief  or other person by whom any covenant or agreement  as is  referred  to  in cl. 1 of Art.  291  was  entered  into. Obviously before a person can be a Ruler under this limb  of the  article  he must be a person who had entered  into  the kind of agreement just now mentioned.  But in order to be  a Ruler  for the purpose of the Constitution he is also to  be recognised  by  the President as a Ruler of a  State.   This means that at the commencement of the Constitution claims of the  former  Rulers to be recognised as the  Rulers  of  the respective  States  had  to  be  considered.   Clearly   the Constitution  did  not contemplate the  eventuality  of  the President  not choosing to recognise anybody as a  Ruler  or

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choosing only those whom he liked.  In the setting in  which the Rulers accepted the Constitution as binding on them  and their States it 128 must  have  been  in  their contemplation  as  also  of  the Constitution  makers that all of them who were alive at  the commencement of the Constitution would get such recognition. So much for the time when the Constitution became  effective to  start with.  But as Rulers are human beings and are  not immortal the Constitution had to provide for the  continuity of  the line of Rulers and to lay down who would be a  Ruler after the first set of Rulers was no more.  This was done by providing  that the President would recognise someone  as  a successor  of  the Ruler who had departed  this  life.   The expression  "for  the time being" was not inserted  for  the purpose  of  giving power to the president  to  recognise  a person  or  withdraw  recognition  from  him  as  his  fancy dictated.   It  was  put in for the purpose  of  fixing  the identity  of  the  Ruler at a given point  of  time  and  to emphasise the fact that there could be only one Ruler for  a State  at  any point of time.  Read as a  whole  the  clause proceeds on the assumption that the President had the right, power  or duty or obligation to recognise some person  as  a Ruler both at the commencement of the Constitution and  ever afterwards so long as the line of Rulers lasted and so  long as  these  provisions were in the Constitution.  A  duty  or power  or  right  or  obliation  to  recognise  someone   as successor  to the Ruler is also embedded in the clause.   If there  were no covenants or agreements to guide him or  bind him, the President could probably recognise and  derecognise or  withdraw recognition at his will and pleasure.   Clearly however  the grant of such a power was not in the  minds  of the Constitution-makers.  At the time when they entered into covenants  and agreements, a solemn assurance  or  guarantee was  given by the Dominion of India that succession  to  the gaddi of each Ruler would be according to law and custom  of the  State.   It would appear that invariably  the  rule  of lineal  male  primogeniture  coupled  with  the  custom   of adopting  a  son prevailed in the case of Hindu  Rulers  who composed  of the bulk of the body.  When on the eve  of  the Constitution  being  finally  adopted the  Rulers  with  the exception of two or three accepted the same as binding  upon them and their States, it must follow that they accepted and adopted  the Constitution of India because they thought  and were assured that the provisions in it regarding  themselves and  their  successors were to their satisfaction  and  were binding in nature.  They certainly never imagined that  they would be the play-things of the executive Government of the Union  of India to be thrown out like pawns off the  chequer board  of  politics at any moment when the  Government  felt that   their  presence  was  irksome  or  that   they   were anachronistic  in  the  democratic set up  of  India.   This democratic  set  up  was what the  Constitution  ushered  in albeit  with  a  shadow  of the  past  in  the  Rulers  with attenuated pomp and pelf.  The choice of a person as a Ruler to  succeed another-on his death was certainly not  left  to the mere caprice of the President.  He had to 129 find out the successor and this he could do not by  applying the ordinary rules of Hindu Law or Mohamedan Law but by  the law and custom attaching to the gaddi of a particular State. That  the  Government  of India had no doubts  about  it  is exemplified  by  several instances where on  a  question  of disputed  succession  a reference was made to  a  very  high judicial officer to find out the rightful successor with the

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help  of  other  Rulers.   I  may  mention  only  two   such instances,  namely, the appointment of Shri H.  V.  Divatia, Chief  Justice  of the Saurashtra High Court and  a  retired Judge  of  the Bombay High Court and  their  Highnesses  the Maharaja  of Jaipur and the Maharao of Kotah as members,  to enquire  into  and  report  on the  rights  of  the  various claimants  to  the gaddi of Sirohi and the validity  of  the succession  of His Highness Maharao Shri Tejsinghji  Bahadur who  was  recognised as the Maharao of Sirohi by  the  Crown Representative in May 1946 on the death of His Highness Shri Sarupramsinghji who left no male heir of the body or adopted son.   The insertion in the Gazette of  India  Extraordinary under  date 7th October 1950 refers to this as also  to  the activities  of the Committee and its conclusion  that  there was  no  such  valid adoption of Shri  Tejsinghji  into  the Bajawat  family  as deprived him of his legal  status  as  a member of the ruling family.  The notification ends with the following :-               "Having  carefully considered the report,  the               President   accepts   the  findings   of   the               Committee   of  Enquiry  in  their   entirety.               Accordingly in exercise of the powers  vesting               in him under Art. 366(22) of the Constitution,               the  President  is pleased to  recognise  Shri               Abhaisinghji  as the Ruler of Sirohi in  place               of  the present minor Maharao Shri  Tejsinghji               Bahadur  who shall cease to be  recognised  as               such with effect from the date of this Order." This  clearly shows that the President, did not act  in  any arbitrary  manner.  The claims were investigated  into  with the help of one of the highest judicial officers of the land and  reported  on to the President The  President  thereupon withdrew  recognition  from  Shri  Tejsinghji  Bahadur   and recognised Shri Abhaisinghji as the Ruler of Sirohi.  To  my mind Art. 360’(22) read with the rules of succession in  the Merger  agreements and the covenants was given full  effect. Recognition was given to the person lawfully entitled to  be declared  the successor to the gaddi and the same was  with- drawn  from a person who was held not entitled to  it.   The Act was certainly executive but in nature it was based on  a judicial scrutiny and not on any political consideration  or in an arbitrary fashion. Another   instance  of  applying  the  law  and  custom   of succession  is  afforded by the case of  Dholpur  which  was enquired into by Shri 130 K.   N.  Wanchoo, Chief Justice of the Rajasthan High  Court (as he then was) forming a Committee with two Rulers. To  my mind the Merger agreements and covenants did not  be- come waste paper on the commencement of the Constitution  to be  consigned to the record room or any museum.  So long  as the above provisions enure in the Constitution a Ruler  will have to be found for a State and such finding must be on the basis  of  the  law and custom of the State.   That  is  the assurance  which was given to the Rulers when they  accepted the  Constitution and I see no reason why  the  Constitution should be interpreted in a way to set that .at naught. In  the  light of the above, my view is  that  Art.  366(22) implied not merely a right or power but a duty or obligation to  recognise a person as a Ruler i.e. a duty or  obligation to do so and the power ,or duty to withdraw recognition must be  confined  to cases when the first  recognition  was  not proper as in the case of the Sirohi succession. But  the learned Attorney-General would interpret  the  same differently.  He put forward his contention in the following

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propositions :- (a)  Recognition  was  only for the purpose  of  fixing  the identity of a person for payment of privy purse and grant of privileges  pursuant  to the  Constitutional  provisions  in Arts. 291 and 362. In  support  of  this  he  relied  on  the  Debates  in  the Constituent  Assembly  to which reference has  already  been made.   He  relied on a decision of this Court  in  Maharaja Pravir  Chandra  Bhanj Deo Kakatiya v. The State  of  Madhya Pradesh(1).  There the appellant was the Ruler of the  State of  Bastar  and  had  entered into  an  agreement  with  the Government of India whereby he had ceded the State of Bastar to the Government of India to be integrated with the Central Provinces and Berar.  He challenged the applicability to him of Madhya Pradesh Abolition of Proprietary Rights  (Estates, Mahals, Alienated Lands) Act, 1950 (Madhya Pradesh Act I  of 1951) meant to provide for the acquisition of the rights  of proprietors  in  estates,  mahals,  alienated  villages  and alienated lands in Madhya Pradesh which was applicable to  a person  described as an ex-Ruler of an Indian  State  merged with Madhya Pradesh.  The appellant’s contention was that he was  still  a  sovereign Ruler and  absolute  owner  of  the villages to which the Act was sought to be applied.  In  the course of the judgment of this Court there is an observation at p. 506 reading (1)  [1951] 2 S.C.R. 501 131               "The effect of the Merger Agreement is clearly               one  by which factually a Ruler of  an  Indian               State ceases to be a Ruler but for the purpose               of  the Constitution and for the  purposes  of               the  privy purse guaranteed, he is a Ruler  as               defined  in Art. 366(22) of the  Constitution.               There  is  nothing in the provisions  of  Art.               366(22)  which requires a court  to  recognise               such  a  person as a Ruler  for  the  purposes               outside the Constitution."               Earlier  in  the judgment at page 504  it  was               said               "The  expression  ’Ruler’ as defined  in  Art.               366(22)  of the Constitution applied only  for               interpreting    the    provisions    of    the               Constitution."               In  my view these observations do not  advance               the contention of the Respondent as the  Court               was  not there concerned with the question  of               power  to  recognise or  withdraw  recognition               from  a Ruler.  The only question  before  the               Court  was  whether the appellant was  an  ex-               Ruler for the purposes of the Act.,               Reference  may be usefully made  to  paragraph               241(3)  at  page  129 of the  White  Paper  on               Indian  States under the heading  "Recognition               of Rulers" reading :               "The  Rulers  of  the  merged  and  integrated               States have  been   guaranteed   succession               according to law and custom.  In the Covenants               and   some  of  the  Agreements   of   Merger,               provision  has been made for the procedure  to               be  observed for the, settlement of the  cases               of disputed succession.  In the case of Rulers               of  States forming Unions, every  question  of               disputed  succession is to be decided  by  the               Council of Rulers after referring to the  High               Court of Union and in accordance with the opi-

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             nion of that Court."               The above is followed by the quotation of Art.               366(22)  and according to the White Paper  "it               is  expected that in according recognition  to               Rulers, the President will show due regard  to               the provisions of the Covenants and Agreements               of  Merger  in respect of the cases  to  which               these provisions apply."               (b)   The   learned   Attorney-General    then               submitted that the power of recognition was  a               political  power in the paramountcy  field  to               which  the Dominion Government and  thereafter               the  Union Government under  the  Constitution               succeeded  and for this he referred  to  White               Paper, paragraph 266 at p. 143 reading:               "In  spite  of the declaration  regarding  the               lapse  of  paramountcy,  the  fundamentals  on               which  it  rested  remained.   The   essential               defence  and  security  requirements  of   the               country and the compulsions of geography               132               did not cease to be operative with the end  of               British  rule in India.  If anything,  in  the               context of world events, they have become more               imperative.   The Central Government in  India               which succeeded the British was unquestionably               the  paramount  power in India both  de  facto               and,  de jure and that Government,  alone  was               the  only completely independent sovereign  in               India." To  my  mind the British Crown was the  paramount  power  in India  because of the might of its power.  Its power was  so great  compared to,that of the Rulers of the  Indian  States that  it  could annex any territory at any  time  and  bring under subjugation all the Rulers by compulsion or subsidiary alliances.   There  was no sanction  of  (International  law behind it.  Paramountcy after the British had come to be the foremost  power  in  the.  country  was  one  of  their  own creation.  In strict legal theory whatever paramountcy there was  before the 15th August 1947 in the  British  Government lapsed  with  the passing of the  Indian  Independence  Act. Thereafter  the  Dominion of India was free to  do  what  it liked  subject  to world opinion and their  own  conscience. Paramountcy de facto there undoubtedly, was but speaking for myself   I  cannot  ascribe  any  legal  sanction  to   such paramountcy.   The  Rulers  of Indian  States  submitted  or agreed to the cession of their territory and the  government of  their people by the Government of the States with  which they  merged and ultimately *the Government of the Union  of India because they felt that it was in the best interests of their people and also of themselves. (c)The  learned  Attorney-General  argued  that  paramountcy continued and the advent of the Constitution did not put  an end  to it and the debates of the Constituent Assembly  with regard  to  Art.  302-AA  (present  article  363)  that  the disputes covered by the said article were beyond the pale of adjudication  of  courts of law only  recognised  the  same. According  to  him  the  old  concept  of  paramountcy   was virtually- inherited by the Dominion of India before January 1950  by reason of the Instruments of  Accession,  Covenants and Merger agreements : the recognition of a Ruler which was the  gift of Paramount power was not the matter of  a  legal right  and  was  exercised  as an  act  of  paramountcy  and retained the same character.  He cited various decisions  of this Court to show that covenants,and Merger agreements have

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always been so interpreted, e.g. Virendra Singh & others  v. State   of  U.P.(1),  Dalmia  Dadri  Cement  Co.   Ltd.   v. Commissioner  of Income Tax(2) and a number of other  cases. He  argued  further that a plea which was available  to  the Dominion  of India can now be put forward by its,  successor government  and in support of his contention relied on,  the cases of Secretary of State V. (1) [1955] 1 S. C.R. 4 5 at 429 (2) [1959] S.C.R. 729 at 744 133 Kamachee  Boys  Sahaba(1), Doss v.  Secretary  of  State(2), Solmon v. Secretary of State (3) and several others.  In the first case the British Government acting as sovereign  power had seized the whole of the Raj of Tanjore as an escheat  on the ground that the dignity of Rajah was extinct for want of male  heir and this being on act of State the Supreme  Court of  Madras had no jurisdiction. In Doss’s case (Supra)  what was sought to ’be enforced was the liability of an  ex-Ruler of Oudh which was annexed by the Government of India in 1856 on  inter alia the ground that the claim was a  charge  upon the revenues of Oudh.  The plaintiffs who filed the Bill  in the  English  Court  of  Chancery  sought  to  rely  upon  a statement of Lord Stanley, President of the Board of  Cotrol in  the House of Commons that "the transfer of the  revenues of the Kingdom of Oudh carried with it a liability for  such debts on the former government and were justly  contracted". The  plea in, demurer that the seizure of the  property  was an, act of State and that it was not liable to any review by a court of law or equity was upheld.  The above and cases of the  type to my mind are easily distinguishable.   Once  the Rulers  ceded their territory and accepted the  Constitution of  India  as the Constitution of their States  they  became citizens  of India on the commencement of  the  Constitution and  the plea of continuance of an act of State  as  against them  cannot  be accepted.  The Rulers  became  citizens  of India like millions of others but in recognition of the past the Constitution gave them certain special rights like privy purses   and  assured  them  of  continuance   of   personal privileges in terms of articles 291 and 362. (d)  The learned Attorney-General submitted that the  recog- nition  of  Rulership  was an exercise  of  political  power vested   in  the  President  on  the  strength  of   certain observations  in Kunwar Shri Vir Rajendra Singh v. Union  of India (4) In that case the petitioner claimed to be entitled to  the  private properties left by Maharaja  Rana  Udaibhan Singh  of  Dholpur on the basis that it  was  an  impartible estate and he was entitled thereto according up the law  and custom of lineal primogeniture.  There was a WI-it  petition to this court as also an appeal from a judgment of the  High Court  which  were dealt with by a common judgment  of  this Court.   The last Ruler of Dholpur died in 1954 leaving  him surviving  no direct male heir but he had left his  daughter who was married to the Maharaja of Nabha.  His widow adopted a  grandson, viz., one of the sons of the daughter and  thus arose a controversy as to who was entitled to the  Rulership of Dholpur and the Government of India by notification dated December 22,. (1) 7 M.I.A. 476                 (2) L.R. 19 Equity 509 (3) [1906] 1 K.B. 613            (4) [1970] 2 S.C.R. 631 134 1954  constituted  a  Committee, as  already  mentioned,  to examine  the  contentions of various claimants  and  no  the basis  of  the  report  of  that  Committee,  the  President recognised  His Highness Maharaja Rana Shri Hemant Singh  as the   Ruler  of  Dholpur  from  22nd  October,  1954.    The

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contentions  put  forward on behalf of the  petitioner,  the appellant to this Court were (1)  The handing over or authorising the taking over of pri- vate  properties was by executive flat and was ex facie  bad as   infringing  Art.  19  (1)  (g)  and  Art.  31  of   the Constitution; (2) that the recognition of a Ruler even if it was an instance of exercise of political power was itself an insignia  of  property  and therefore it could  only  be  by authority  of  law and would have to  yield  to  fundamental rights.  (3)  After  the commencement  of  the  Constitution recognition  of the Ruler was not an exercise  of  political power  and  that  such  recognition  under  cl.  (22)  meant recognising a fact that a person was a Ruler and the  clause did  not empower the President to create a fact of  bringing into effect a Ruler by recognising a person as a Ruler.  (4) If  there  was any power to recognise the Ruler  it  was  an arbitrary and unguided power and infringing the  fundamental right to property, and (5) As there was no dispute regarding the covenant inasmuch as succession did not arise out of the covenant  Art.  363 of the Constitution was  not  attracted. The  right to succession to private property was said to  be independant  of  any covenant.  The above  contentions  were turned  down by this Court.  Referring to  the  notification published in the Gazette of India on 22nd December 1956  the Court  said  that it did not state that  the  Ruler  thereby became entitled to private properties of the late Ruler.  It was observed :               "The  recognition of the Ruler is a  right  to               succeed  to  the  gaddi of  the  Ruler.   This               recognition  of Rulership by the President  is               an  exercise of political power voted  in  the               President  and is thus an instance  of  purely               executive jurisdiction of the President.   The               act of recognition of Rulership is not, as far               as the President is concerned, associated with               any  act  of recognition of right  to  private               properties."               It was also said :               "The  words ’is recognised by  the  President’               indicate  beyond any doubt that the  power  of               the President to recognise a Ruler is embedded               and inherent in the clause itself.  Again,               the  words "for the time being" indicate  that               the President has power not only to  recognise               but  also  the withdraw  recognition  whenever               occasion arises  . . . . . . . . . .               135               The   recognition  of  Rulership  is  one   of               ’personal  status.   It cannot  be  said  that               claim  to recognition of Rulership  is  either               purely a matter of inheritance or a matter  of               descent  by devolution.  Nor can claim to  re-               cognition  of  Rulership  be  based  only   on               covenants  and treaties. ;That is why  Article               363  of the Constitution constitutes a bar  to               interference  by Courts in a  dispute  arising               out  of treaties and agreements.  No claim  to               recognition  of  Rulership  by  virtue  of   a               Covenant  is  justiciable in a Court  of  law.               The Constitution, therefore, provided-for  the               act  of  recognition of the Rulership  by  the               President ’as a political power." Some  of  the  above observations  undoubtedly  sustain  the contention of the learned Attorney-General but they must  be limited  to  the  facts of the  case.   The  petitioner-cum-

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appellant  before this Court did not claim any right to  the gaddi.   He  only  claimed to, be entitled  to  the  private properties of the deceased Ruler according to law and custom of   lineal  primogeniture.   His  complaint   against   the notification  under  cl. (22) of Art. 366 was  not  accepted mainly  because  the notification made no reference  to  the private  properties of the late Ruler.  The Court held  that the  petitioner had not been able to establish any claim  to any private property belonging to the last Ruler. There  have ’however been instances where the President  did not act strictly in accordance with what conceive to be  his power,  duty  or  obligation to  recognise  or  to  withdraw recognition to a Ruler.  A notable instance of this occurred soon  after  the  commencement  of  the  Constitution   when recognition  was withdrawn from Sir Pratap Singh, the  Ruler of  Baroda  and  his  eldest  son  Yuvaraj  Fatehsingh   was purported to be recognised as the Ruler of Baroda under  the powers  conferred by Art. 366(22).  The order was served  on Sir  Pratap  Singh on April 12, 1951.  The trouble  in  this case  originated with Sir Pratap Singh’s attempt  to  foment trouble  against  the  Union  of India  and  his  design  to challege the merger of Baroda.  Full details of this episode are  given in Mr. Menon’s book from page 403 onwards.   Some instances where there was no recognition of any successor to an  erstwhile  Ruler  occurred in the case  of  Baudhraj  of Orissa,  Nandgaon of Madhya Pradesh and Delath  of  Himachal Pradesh.   In  the  first case the widow  of  the  Raja  was informed in May 1958 that "after consideration of the report submitted by Shri B. C. Das the President has decided not to recognise  any  successor to the late  Raja  Narayan  Prasad Roy".  There was no statement that the Rulership had lapsed. In the other two cases Rulership was said to have lapsed. 136 (e)  The  learned  Attorney-General  also  argued  that  the rights  .given  by  Art.  291 and  Art.  362  at  best  were imperfect obligations not enforceable in a court of law.  In view  of  my  conclusion on article 363 I do  not  think  it necessary to examine the, decisions cited by him or make any pronouncement on his contention. (f)  The learned Attorney-General next submitted that assum- ing  Art. 366(22) gave a right to be recognised as  a  Ruler and  obligation to recognise, the enforcement of such  right or  obligation  was barred by Art. 363.  According  to  him, claim  to recognition arose from the covenant and  not  from Art. 366(22).  The covenant was signed by the Ruler as Ruler and  it was guaranteed by the Government of India.   I  have already dealt with the scope and content of Art. 366(22) and held  that  it is inextricably linked  with  the  covenants, Merger agreements etc. On the basis of the above contentions it cannot be said that the Government of India has not raised a dispute with regard to  the right, power, obligation or duty to recognise and  a co-related power or duty etc., to withdraw recognition. However,  in the light of historical facts i.e.  the  events preceding  the  Constitution, the covenants and  the  Merger agreements  entered into by the Rulers  uniformly  providing for  succession  to the gaddi by the law and custom  of  the particular State, the guarantee thereof by the Government of the Dominion of India and the provisions of the Constitution perpetuating the payment of privy purses and mandate of  the regard to the personal rights and privileges of the  Rulers, the  contention of the learned Attorney-General cannot  find favour  in  a  court  of  law.   The  covenants  and  Merger Agreements  were undoubtedly political acts entered into  by High  Contracting Parties and as such-they could not be  en-

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forced  in  a court of law.  But once  the  Constitution  of India took the field and the Rulers became citizens of India there  could  be no acts of State as against  such  citizens living in India. The question however remains as to whether these are matters which  can  be adjudicated upon by the municipal  courts  in India. This  point would fall to be considered under ’Art. 363  but before that one must refer to Art. 291 which is the prop and pillar  to the claim of privy purse.  This  ’article  places the  payment of privy purse on a constitutional  foundation. It  expressly refers to the covenants or agreements  entered into  by a Ruler of an Indian State before the  commencement of  the  Constitution  and  provides  for  the  disbursement thereof  by directing that the sums shall be charged on  and paid  out of the Consolidated ’Fund of India.  In effect  it means  that the guarantee given by the Government  of  India for the payment of sums free of taxes by way of 137 privy  purse under convenants or agreements etc., is  to  be worked  out  and discharged by ensuring that the  said  sums shall be charged on and paid out of the Consolidated Fund. According to Mr. Palkhivala. (1)  Art. 291 is mandatory.  It creates new and  independent rights and obligations by being engraved in the Constitution and  as  such beyond the reach of the  Legislature  and  the Executive.  This new and independent right makes the article a  self-ordaining and self-sustaining one.  In  cases  where there  is no dispute about the amount of the privy purse  no question of any reference to the covenant arises. (2)  The  amounts of privy purse guaranteed by Art. 291  are the  same as mentioned in the covenants but in  other  vital respects  the  provisions of Art. 291  constitute  a  marked departure from the provisions of the covenants. (3)  First,  whereas  the liability under the  covenant  was that of the relevant State or the United State, it is made a liability   of  the  Central  Government  under  Art.   291; secondly,  the  amounts of privy purses are charged  on  the Consolidated Fund of India for the first time; thirdly,  the amounts are guaranteed to be exempt from all taxes on income whereas  under the covenants the amounts were to be free  of all  taxes whether imposed by the Government of  the  United State or Government of India. (4)  The covenants are referred to in the article only  for the  limited purpose of identifying the privy  purses  which are  the subject matter of Art. 291.  The article cannot  be said to elate to convenants merely because it refers to them for the limited purpose of identifying the privy purses. (5)  Once  Art. 291 is held to be mandatory there can be  no dispute  as to whether the privy purse will or will  not  be paid.   In  other  words Art. 363 only  refers  to  bonafide disputes  and  not disputes which would merely amount  to  a mockery of the Constitution. (6)  The principle of harmonious construction would have  to be  applied.  Art. 363 cannot be so construed as to  violate the  effect and mandate of articles 112, 113, 114,  291  and 366(22).   Article 366(22) would be violated because one  of the main legal effects of recognition under that article  is to  entitle  the  recognised Ruler to the  privy  purse  and denial of the privy purse would stultify     one of the main objects of recognition. (7)  The second limb of Art. 363 read along with the first makes it  clear that the whole object is to prevent disputes arising from covenants being raised in the garb of enforcing a right

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138 conferred  by  a  provision of  the  Constitution.   In  the present series of cases Art. 363 does not apply since  there is no dispute as to rights arising from the covenant and the constitutional provisions merely guarantee that right. (8)  In any view of the matter any decision to repudiate the obligations  under  Art.  291 would be  malafide  and  ultra vires.  The power or jurisdiction cannot avail an  authority to  make  an order or decision which is malafide  and  ultra vires  because  such an order or decision is a  nullity  and the-bar of jurisdiction under Art. 363 cannot be pleaded  to protect a nullity. The submissions of the learned Attorney-General were (a)  The  right to privy purse which accrues under Art.  291 clearly  relates  to a covanant : hence Art.  363  bars  any dispute  in  respect of such a right  or  recognition.   The Constituent  Assembly Debates go to show that  this  article was  meant to give constitutional recognition to  guarantees given  by  the  Government of India  and  provided  for  the expenditure being charged on the Central revenues subject to such recoveries as might be made from time to time from  the Provinces  and States in respect of these payments.  It  did not  create any new and independent right unrelated  to  the covenant. (b)  The second limb of Art. 363 bars any dispute under Art. 291  as  would be apparent from the  correspondence  between Shri  V. P. Menon, the Secretary to the Ministry  of  States and S. N. Mukherjee. (c)  Art.  291 which gave constitutional guarantee to  those demands   embodied  constitutional  sanction  for  the   due fulfilment  of  the  Government of  India’s  guarantees  and assurances in respect of privy purses. (d)  The  covenant was an act of State and any violation  of its  terms  cannot  form the subject of any  action  in  any municipal courts.  The guarantee given by the Government  of India  was in the nature of a treaty  obligation  contracted with  the sovereign Rulers of independent States and  cannot be  enforced by action in municipal courts; its sanction  is political  and  not legal; on the coming into force  of  the Constitution   of  India  the  guarantee  for   payment   of periodical  sums as privy purse is continued by Art. 291  of the  Constitution but its essential political  character  is preserved  by  Art. 363 of the Constitution.   Art.  363  in effect recreated paramountcy and barred the adjudication  of any  dispute  which had its seed in act-% of  State  by  any court of law. 139 (e)  A  charge on the Consolidated Fund of India only  means that it shall not be submitted to the vote of Parliament  as provided  in Art. 113(1).  It does not by itself  create  an independent right in the recipient. (f)  Art.  291  arose  out  of  an  act  of  State  to  give constitutional  recognition to a right which was  previously unenforceable. (g)  Assuming  that Art. 291 by itself created a  new  right and  a new obligation the article related to a  covenant  on the face of it and as such is barred by Art. 363. In  my  view,  it  is  not  necessary  to  examine  all  the contentions  raised for and against the petitioner  for  the final  conclusion to be arrived at.  There can be  no  doubt that the provision of Art. 291 was not a mere declaration of pious  intention which the executive could disregard at  its whim  or  pleasure.   So long as it finds  a  place  in  the Constitution it was meant to be acted upon.  It was meant to assure  the.  Rulers that the privy purses which  were  con-

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tained  in  the covenants and agreements guaranteed  by  the Government  of  the  Dominion  of India  were  to  be  fully honoured  and  not  cast away on a false  morass  of  public opinion  or  buried  under  acts of  State.   No  doubt  the covenants or Merger   agreements were acts of State but when the  framers  of the Constitution came to  provide  for  the Rulers  by  giving  them assurance  of  continuance  of  the payment  of privy purse and regard to their personal  rights and privileges by enshrining them in the Constitution, in my view  they  never contemplated that the same was to  be  the play-thing of the executive.  It was by the incorporation of Arts. 291 and 362 that the Constitution-makers were able  to get the willing consent and co-operation of the Rulers to be brought within the fold of the Constitution.  As observed by Sardar  Vallabhbhai  Patel the settlements with  the  Rulers were overall settlements taking all the pros and cons of the situation  into consideration the aspirations and  ambitions of  the people of the States, their wish and desire to  get independence  of the same type which their brethren  in  the erstwhile  British  India  had  obtained,  their  right  and determination  to have a voice in the administration of  the country  through their elected representatives,  their  zeal for getting out of the arbitrariness of some of the  Rulers, no less than the wish and desire of the Rulers to honour and accept  the  desires and ambitions of their  people  coupled with  a  desire, to live in peace at least with  a  part  of their denuded status, their decimated right to property and a  fraction of the personal privileges to which  they  were previously entitled.  As Sardar Vallabhbhai Patel put it :               "The  privy purses and the guarantee  as  to               personal  rights and privileges was the  quid               pro  quo for the parting of their  powers  and               their  huge States by the Rulers and  was  the               minimum which could be afforded to them." 10-L744 Sup CI/71 140 Sardar  Vallabhbhai Patel speaking in 1949 said  that  human memory  was  proverbially  short and that  in  October  1949 people might not remember what had taken place in the  years preceding,  namely, the tremendous upheaval in  the  country since  1946 and the possibility of the Rulers  taking  sides with  States  or  peoples not  favourably  disposed  towards India.  Only twenty years have passed since then-too short a period  to  sweep overboard all that took place  during  the memorable   years   preceding  the   commencement   of   the Constitution.   The old order must change yielding place  to new  but  the  change  should not  be  cataclysmic.  at  the sacrifice of the interests of fairly large number of persons who  had  helped  to  consolidate  India  in  a  manner  far different  from anything that had taken place in  the  past. However  that  may be we are only concerned with  the  legal aspect,  the morals being for the country at  large  through their elected representatives to decide. Article 291 was undoubtedly meant to put the guarantee as to payment  of  privy  purses contained in  the  covenants  and agreements  on  a  firm and sure footing.  But  it  was  not completely  dissociated from the covenants.  It has  a  link with  the covenants which were partially-projected into  the Constitution.   This article has its base in the  covenants. Its  object was to give a lasting and permanent  setting  to the term in the covenants as to payment of privy purses.   I find myself unable to hold that the article does not  relate to a covenant.  ’In my view it deals with a portion-the main portion  of the entire stream of the covenant and  makes  it flow along a particular and well-defined channel--a  channel

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which  is not only well-defined but with a solid  foundation and sides. Counsel on both sides were at pains to show what the  effect of   the  expression  ’charged  on  and  paid  out  of   the Consolidated Fund or India’ meant.  According to the learned Attorney-General and Mr. Mohan Kumara Mangalam who  followed him,  the  expression  "charged  on"  was  only  a  form  of expression  used for the purpose of financial estimates  and Appropriation  Bills.  It was meant to  distinguish  certain items  in  the Appropriation Bills from  grants  which  were votable at the will of Parliament and the further  direction for  paying  out thereafter did not  advance  matters.   Ac- cording  to  Mr.  Palkhivala who referred  to  some  of  the financial  provisions in the Constitution, a  security  was created  thereby on, the Consolidated Fund, that  there  was something  akin  to a pledge of it for the  payment  of  the privy purse giving rise to a new right.. in my view whatever the  nature of their right it- is related to  the  covenants and as such within the fold of Art. 363. Before  referring  to any decisions on the point it  may  be useful to make an attempt to define the scope of Art. 363 as if it was a case of first impression.  The article  purports to over-ride all 141 other provisions of the Constitution excepting Article  143. in respect of recourse to any court of law for settlement of any  disputes.  covered by it.  Article 143 is  a  provision enabling  the  President of India to obtain the  opinion  of this Court by a reference on any question of law or fact  of such  public importance as merits a scrutiny by the  highest court of the land.  Article 143 is only anenabling provision but  its scope, is so wide that on any question,  of  public importance-be it one of law or fact-the President may. refer to  this Court for its opinion.  Save for the power  of  the President  to refer a matter to this Court for  its  opinion under  Art.  143, Art. 363 imposes an absolute  bar  on  the jurisdiction  of  all  courts to  adjudicate  upon  disputes covered by it.  of necessity,, the bar must apply to Art. 32 also.   Under  the last mentioned article  the  Constitution reserves to everybody entitled to any right. covered by Part III  i.e. the fundamental rights, to move this  Court.,  The amplitude of the right and the kind of directions which  may be  issued  to enforce that right are contained  in  various clauses of the article.  None of these clauses over-ride the all-embracing,  provision  of  Art. 363.   Rights,  be  they fundamental  or  otherwise  which form the  subject  of  any dispute  covered by this article must, alike come under  its bar. The  disputes  which  fall within this bar  may  be  of  two kinds.,  Under  the first limb of the  article  any  dispute arising  out  of  any provision  of  a  treaty,  engagement, covenant,  sanad  or  other similar’  instrument  which  was entered into or executed before the 26th January 1950 by any Ruler  of an Indian State and to which the Dominion  of  the Government  of India or any of its  predecessor  Governments was a party and which is or has been continued in  operation after the said date, are not to be the subject matter of any judicial proceedings. Clearly,  therefore,  any  one seeking to  have  his  rights adjudicated upon on the basis of a covenant or agreement  or Merger  agreement  or  Instrument  of  Accession  would   be debarred  from coming to court and ventilate  his  grievance about any violation of. his right. Under  the  second  limb of the  article  fall  disputes  in respect-  of-. any right accruing under or any liability  or

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obligation   arising   out.  of  any   provisions   of   the Constitution relating to any treaty, agreement etc.  To  see whether any dispute falls within this limb one must  examine the  content of the right or the limit of the liability  or obligation arising out of any constitutional provision which provision  in its turn must relate to any treaty,  agreement etc.   Dispute  means  any  contradiction  or   controversy. Whenever a person asserts or claims a right in respect of  a subject  matter and another person contradicts it or  denies it, there is a dispute.  Disputes may 142 be many and of various kinds. it may relate to a question of fact ,or a question of law which again may be a very  simple or a complicated one.  A question of law may arise about the interpretation  of a contract; equally it may  arise,  about the  interpretation of the provisions of  the  Constitution. But whatever be the quality or the nature of the controversy it  would be a dispute short of somebody trying to  raise  a contention  which was absurd on the face of it  e.g.,  ,that ’black means white. The right, liability or obligation in dispute must arise out of the provisions of the Constitution which has any  bearing on  any  treaty, agreement, covenant, engagement  etc.   The expression  " relating to" means inter alia "stand  in  some relation, to have bearing or concern, to pertain, to  refer, to bring into association with or connection with." In  my  view  Art. 291 is undoubtedly  a  provision  of  the Constitution relating to covenant, agreement etc.  As I have already  indicated  Art. 291 is not merely a  provision  for finding out the .amount of the liability of the Dominion  of India by way of privy purse to a Ruler.  It expressly refers to covenants or agreements ,entered into by the Ruler  under which  payment  of sums free of tax had been  guaranteed  or assured by the Government of the Dominion of India as  privy purse  and gives the term as to privy purse a new shape  and form Article 291 not refers to the covenant, engagement etc. but certainly has a bearing on or concern with the same  and is brought into association or connection with the same. As already indicated, the article seeks to instill life  and vigour  into  the  term for payment of privy  purse  in  the covenant  by  creating  a new channel  leading  out  of  the guarantee  of the Government of the Dominion of India  which was  no  longer  in existence and making  it  flow  along  a constitutional course by putting the liability of the  Union of  India  for payment of the sums beyond  any  controversy. The article places the payment beyond the reach of voting by Parliament  and expressly directs that the moneys  shall  be paid out of the Consolidated Fund of India and that the sums so  paid shall be exempt from all taxes of income.   I  find myself unable to accept the argument of Mr. Palkhivala  that for the purpose of Art. 29.1 a reference to the covenants is only  called for to find out the amount of privy purse.   If that  was the sole object of the article it might well  have been  achieved by using the following words or words to  the like effect               "all sums om money mentioned as privy purse of               Rulers  of  Indian States in  any  engagements               entered   into  by  them  and  to  which   the               Government of the Domi-               143               nion of India was a party, shall be charged on               and  paid  out  of the  Consolidated  Fund  of               India." If one was asked whether and if so, how the Constitution had dealt  with  the  rights  of  the  Rulers  of  Privy  purses

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contained in the covenants and Merger agreements  guaranteed by the Government of India, the answer would have to be that the  same  has been recognised and perpetuated in  Art.  291 making  assurance doubly sure by directing the  charging  of the  Consolidated Fund with the amounts thereof and  payment thereout  without  deduction of income-tax.   So  considered Art. 291 must be held to be an, article of the  Constitution relating  to covenants or Merger agreements and any  dispute as  to payment of privy purse would come, under the  bar  of Article 363. Article 363 has come up for consideration before this  Court in  a  number of cases and reference has been made  to  this article quite frequently in several decision. In  one of the earliest decisions of this Court in State  of Seraikella & others v. Union of India & another(1) the Court had  to  consider whether a suit filed on the  15th  January 1950 (before the commencement of the Constitution) under the Original,   Jurisdiction   of  the  Federal  Court   for   a declaration that the various orders under which the State of Seraikella  came to be administered as a part of  Bihar  and the laws under which those orders were made were ultra vires and  the Province of Bihar had no authority to carry on  the administration of the State, was dismissed by a majority  of the Judges of this Court as being barred by Art. 363.  Among the contentions urged there was one that the suit which  was filed  before  the 26th January 1950, stood  transferred  to Supreme Court under Art. 372(2) of the Constitution and that the   Bar   of  Art.  363  was  only  prospective   and   of retrospective.  Kania, C.J. observed that the all  embracing opening  words of Art. 363 over-rode the operation  of  Art. 374(2).  The learned Chief Justice also said               "If the plaintiff contends that that agreement               (agreement  of  15th  December  1947)  is  not               binding  on it, it cannot enforce  its  rights               under the original jurisdiction of the  Court.               If  the plaintiff has a grievance and a  right               to  a relief which the defendants  contend  it               has not, the forum to seek redress is not  the               Supreme   Court   exercising   its    original               jurisdiction on the transfer of the suit  from               the Federal Court."               (1)   1951 S.C.R. 174               144               In Sudhansu Shekhar Singh Deo v. The State  of               Orissa(1) the Ruler of the erstwhile State  of               Sonepur in orissa which had merged with Orissa               complained  of a violation of his  rights  and               privileges  by the inclusive definition  of  a               "person’   in   s.   2(i)   of    the   Orissa               Agricultural Income Tax Act, 1947 (Orissa  Act               24 of 1947).  His case in substance was  that               as a Ruler of a State he had been immune  from               payment of agricultural income-tax when it was               imposed  in 1947 and by articles IV and  V  of               the  Merger  agreement executed by,  him,  the               Dominion  of India had guaranteed to  him  all                             his personal rights, privileges etc. a nd so the               attempt  to tax his private property  violated               that guarantee.  In dismising his appeal  this               Court referred to Art. 362 ’and observed :               "If despite the recommendation that due regard               shall  be  had to the guarantee  or  assurance               given  under  the covenant or  agreement,  the               Parliament or the Legislature of a State makes

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             laws  inconsistent with the  personal  rights,               privileges  and dignities of the Ruler  of  an               Indian State, the exercise of the  legislative               authority  cannot, relying upon the  agreement               or  covenant, be questioned in any court,  and               that  is so expressly provided by Art. 363  of               the Constitution.". Nawab  Usmanali Khan v. Sagarmal (2 ) was a case  where  the respondent had taken execution on proceedings in enforcement ,of  an  award and a prohibitory order under Or.  21  r.  46 Civil  Procedure  Code  was passed in respect  of  the  sums payable  to the  appellant by the  Central  Government  on account  of  privy purse.  One of the contentions  urged  on behalf  of  the  appellant was the the  privy  purse  was  a political  pension within the meaning of s. 60 ( 1 ) (g)  of the  Civil  Procedure Code and as such  protected  from  the execution  proceedings.  Relying upon the decisions  of  the Judicial  Committee  in Bishambar Nath v.  Nawab  Imdad  Ali Khan(3)   and  Nawab  Bahadur  of  Murshidabad  v.   Karnani Industrial  Bank  Ltd.(4) the Court came to  the  conclusion that privy purses were political pensions.  That Court  also referred  to Arts. 291--and 363 of the Constitution and  ob- served  that  "the covenant entered into by  the  Rulers  of Madhya Bharat State was a treaty entered into by the  Rulers of   independent  States  by  which  they  gave   up   their sovereignty over. their respective territories and vested it in the new United State of Madhya Bharat.  The covenant  was an act of State, and any violation of its terms cannot  form the  subject  of any action in any municipal  courts.   The guarantee given by the Government (1) [1961] 1 S.C.R. 779. (2)  [1965] 3 S.C.R.,201 <3) 17 I.A. 181 (4) 58 I.A. 215 145 of India was in the nature of I treaty obligation contracted with  the  sovereign Rulers of Indian States and  cannot  be enforced  by  action in municipal courts.  Its  sanction  is political  and not legal.  On the coming into force  of  the Constitution   of  India,  the  guarantee  for  payment   of periodical  sums as privy purse is continued by Art. 291  of the  Constitution, but its essential political character  is preserved by Art. 363 of the Constitution and the obligation under  this  guarantee cannot be enforced in  any  municipal court."  With  all respect, it appears to me  that  all  the above  was  not strictly necessary for the decision  of  the case  and it would have been enough to say that privy  purse was  a  pension--a word which according to the  Oxford  Dic- tionary means, "a periodical payment made specially by a Go- vernment,  company,  employer etc."-which was  political  in nature  because  it  was based on  a  political  settlement. However  it  was not the expression of opinion of  only  one learned Judge but the unanimous view of three learned Judges of this Court. In Kanwar Shri Vir Rajendra Singh v. Union of India(1)  a  Bench of another five learned  Judges  of  this Court  have  pronounced  on the  non-enforceability  of  the provision  for  payment of ’privy purse under  Art.  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  abovementioned constitutional  provisions  enure is still  subject  to  the constitutional  bar  of  non-justiciability  and  cannot  be upheld  or  secured  by  adjudication  in  a  court  of  law including this Court.

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Mr.  Palkhivala however tried to cut across the argument  of the learned Attorney-General that a dispute which fell under either  limb  of  Art.  363  of  the  Constitution  was  not justiciable  by  urging that if the act  complained  of  was ultra vires or a nullity, the jurisdiction of the courts  of law would not be excluded and this would apply with  greater force  to denial of a petitioner’s right to the property  of privy purse i.e. a fundamental right and the solemn duty  of this  Court to uphold the same.  To support this plea  under this,,  head  he  referred  to  a  fairly  large  number  of decisions of this Court where it had been held that than  an order  which  was a nullity or which was malafide  or  ultra vires  would not stand in the way of the exercise of  juris- diction  of a court of law to strike it down.   The  notable decisions of this Court are- the following : Pratap Singh v. The State of Punlab(2), Makhan Singh v. State of Punjab (3), R.  M.  Lohia v. State(4) , Ram Swarup v.  Shikar  Chand(5), Sadanandan v. Kerala (1)  [1970] 2 S C.R. 631. (2)  [1964] 4 S.C.R. 773 (3)  [1964] 4 S.C.R. 797. (4)  [1966] 1 S.C.R. 709. (5) [1966] 2 S.C.R. 553. 146 State(1), Jaichand Lal v. West Bengal(2), Raja Anand v. U.P. State(3), Dhulabhai v. Madhya Pradesh(4).  He also relied on several  English decisions, namely, The General Assembly  of Free  Chaurch  of  Scotland  v. Lord  Over  Town(5),  R.  v. Bryant(6)  and  Anismiminic  Ltd.  v.  Foreign  Compensation Commission and another (7) . The first case S. Pratap Singh v. The State of Punjab(8) was one  where  the  appellant who was a civil  surgeon  in  the employment of the State of Punjab challenged the legality of the orders of suspension, revocation of leave, retention  in service after the date of superannuation and institution  of the  departmental  enquiry  against him inter  alia  on  the ground that the same were mala fide passed at  the  instance of  the Chief Minister who was personally hostile to him  in order  to wreak vengeance on him.  The power  exercised  the Government  in that case rested on service rules the  proper application of which is always subject to scrutiny by courts of  law.  Examining the content of the power vested  in  the Government  to pass the impugned orders the  Court  observed that "the use of that power for achieving an alien  purpose- wreaking  the  ministers vengeance on the officer  would  be mala fide and a colourable exercise of that power, and would therefore  be struck down by the Courts".  The  second  case Makhan  Singh  v.  State  of Punjab(9)  was  one  where  the appellants contended that sections 3 (2) (15) (1) and 40  of the  Defence  of  India Act, 1962 and r. 30(1)  (b)  of  the Defence of India Rules were unconstitutional and invalid  as they  contravened the fundamental rights of  the  appellants inter  alia  under Arts. 14, 21 and 22.  The  petitions  had been  dismissed  by the High Court on the  ground  that  the Presidential  Order which had been issued under Art. 359  of the  Constitution  created a bar which precluded  them  from moving  the High Court under s. 491 (1) (b) of  the  Cr.P.C. This Court held (p. 827) :               "If  in  challenging  the  validity  of   this               detention  order, the detenu is  pleading  any               right  outside  the rights  specified  in  the               Order,  his  right to move any court  in  that               behalf is not suspended because it is  outside               Art.  359(1)  and  consequently  outside   the               Presidential Order itself."

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             (1) [1966] 3 S.C.R. 590                (2) [1966] Supp. S.C.R. 464                (3) [1967] 1 S.C.R. 373                (4) [1968] 3 S.C.R. 662                (5) [1904] A.C. 515                (6) [1956] 1 A.E.R. 341                (7) [1969] 1 A.E.R. 208                (8) [1964] 4 S.C.R. 773                (9)  [1964] 4 S.C.R. 797               147               The  observation  amounts to saying  that  the               Presidential  Order  suspending the  right  to               move a court of law can only apply within  the               proper ambit of the President’s power and  the               same  cannot  be used by the  executive  as  a               cloak to shield any misuse of that power.               With regard to the allegation of malafides  it               was observed that               It  is hardly necessary to emphasise that  the               exercise of a power malafide is wholly outside               the scope of the Act conferring the power  and               can always be successfully challenged."               The third case R. M. Lohta v. State(1) was one               in which the petitioner moved this Court under               Art.  32 of the Constitution  challenging  the               order of a District Magistrate and asking  for               his release on various ground, inter alia that               though an order of detention could be made  to               prevent acts prejudicial to the maintenance of               public order it could not be made to  prevent-               acts  which were only prejudicial to  law  and               order as distinct from public order.  It  was.               there  observed by our present  Chief  Justice               that :               "where statutory powers are conferred to  take               drastic action against the life and liberty of               a  citizen,  those  who exercise  it  may  not               depart  from the purpose.  Vast powers in  the               public  interest are granted but under  strict               conditions.   If  a person,  under  colour  of               exercising the statutory power, acts from some               improper  or ulterior motive, he acts  in  bad               faith.  The action of the authority is capable               of  being viewed in two ways.  Where power  is               misused  but  there is good faith the  act  is               only ultra vires but where the misuse of power               is  in ’bad faith there is added to the  ultra               vires character of the act, another  vitiating               circumstance.   Courts  have always  acted  to               restrain  a misuse of statutory power and  the               more readily when improper motives underlie The  provision of law which came up for consideration  there was  the Defence of India Rules and his Lordship  laid  down that  powers given by such rules could be used  only  within the limits prescribed.  Lala Ram Swarup v. Shikar Chand  (2) was a case in which the appellants complained of refusal  of permission  to sue their tenants by the District  Magistrate under  s. 3(1) of the U.P. Act 3 of 1947.  The said  section provided that (1) [1964] 1 S.C.R. 709 (2) [1966] 2 S.C.R. 553 148 .lm15 "Subject  to any order passed under sub-section (3) no  suit shall,  without the permission of’ the District  Magistrate,

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be  filed  in  any  Civil Court against  a  tenant  for  his eviction  from any accommodation, except on one or  more  of the following grounds." Sub-section (2) enabled the party aggrieved by the order  of the  District  Magistrate  to  go  up  in  revision  to  the Commissioner and section 7-E provided for revisional  powers to  the State Government n very wide terms.  Section  16  of the Act in terms provided that the order made under the  Act to which S. 3(4) applied was not to be called in question in any court.  There it was observed: "but  the exclusion of the jurisdiction of the civil  courts must  be  made  by a. statutory  provision  which  expressly provides  for it, or Which necessarily and invariably  leads to that inference.  In other words, the jurisdiction of  the civil courts can be excluded by a statutory provision  which is  either express in that behalf or which inevitably  leads to that inference." The  bar  of jurisdiction of the court of law  came  up  for consideration  in two notable cases decided by the  Judicial Committee of the Privy Council.  Secretary of State v.  Mask &  Co.(1)  was  a  case in which a suit  was  filed  by  the respondent to recover the excess amount collected from them- , under protest, by levying duty upon a tariff and not an ad valorem  basis.  The main question for determination in  the appeal  was  whether the order passed by  the  Collector  of Customs  under the provisions of S. 183 of the  Sea  Customs Act,  1878 against the assessment of duty by the officer  of Customs  and  which was subsequently  affirmed  on  revision under  the  provisions of s. 191 of the Act,  constituted  a final   adjudication  or  whether  the  civil   courts   had jurisdiction  to  entertain  the suit  of  the  respondents. Section 188 provided that : "  every  order passed in appeal under this  section  shall, subject  to the power of revision conferred by section  191, be final’. While rejecting the respondents’ contention including  inter alia  that an exclusion of the subject’s right of resort  to the  civil  courts  would  be  ultra  vires  of  the  Indian Legislature  in  view  of  the provision of  S.  32  of  the Government of India Act 1915 the Board referred to the  well known principle of law laid down in (1)  67 I.A. 222 149 Wolverhampton  New Waterworks Co. v. Hawkesford(1)  approved by  the  House  of  Lords in  Neville  v.  London  "Express" Newspaper,  Ltd.(2)  and  adopted  on  the  basis  of  these decisions the dictum that               "Where a liability not existing at common  law               is  created  by ’a statute which at  the  same               time gives a special and particular remedy for               enforcing it".               the party must adopt the form of remedy  given               by   the  statute.             It   was   also               observed :               "It  is settled law that the exclusion of  the               jurisdiction of the civil courts is not to  be               readily inferred, but that such exclusion must               be  either by explicitly expressed or  clearly               implied.   It is also well settled that  even               if  jurisdiction  is so  excluded,  the  civil               courts have jurisdiction to examine into cases               where the provisions of the Act have not  beep               complied  with, or the statutory tribunal  has               not  acted in conformity with the  fundamental               principles of judicial procedure."

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             In  Raleigh Investment Co. Ltd.  v.  Governor-               General in Council(1) the bar of  jurisdiction               of  civil  courts  in  regard  to   income-tax               proceedings  was  contained in s., 67  of  the               Indian Income-tax Act, 1922 providing               "no suit shall be brought in ’any civil  court               to  set  aside or modify any  assessment  made               under  this  Act, and no prosecution  suit  or               other proceeding shall lie against any officer               of  the Crown for anything in good faith  done               or intended to be done under this Act."               The  argument  for the appellant was  that  an               ’assessment was not "made under the Act" if it               gave  effect  to a provision which  was  ultra               vires  the Indian Legislature and that in  law               such  a  provision  was ’a  nullity  and  non-               existent.  The Board held that there was ample               provision  in the Income-tax Act by  which  an               assessee  could question the validity  of  any               taxing provision in the statute which provided               effective  and proper machinery for review  on               grounds  of  law of any  assessment.   Further               according to the Board               "  . . assessment made under this Act"  is  an               assessment  finding its origin in an  activity               of the assessing officer acting as such.   The               circumstance  that the assessing  officer  has               taken into account an ultra vires I  provision               of  the  Act  is in this  view  immaterial  in               deter-               (1)   [1859]6 C.B. (N.S.) 336               (2) [1919] A.C. 368               (3) 741.A. 50.               150               mining  whether the assessment is "made  under               this                Act ".......... Jurisdiction to question  the               assessment  otherwise than by the use of  the               machinery expressly provided by the Act  would               appear  to be inconsistent with the  statutory               obligation  to  pay arising by virtue  of  the               assessment."               It  may be noted that this authority  has  not               found favour with this Court.               Most  of the other decisions which were  cited               by  Mr. Palkhivala were cases where  liability               under  various Sales Tax Acts was  questioned.               I  do not find it necessary to  examine  these               cases  in  any  detail because  of  the  lucid               exposition  of  the  law  on  the  subject  in               Dhulabhai v. Madhya Pradesh(1), a case arising               out of the Madhya Pradesh Sales Tax Act 30  of               1950 which by s. 17 provided that               "Save  as is provided in s. 13, no  assessment               made  and no order passed under this  Act,  or               the  rules  made hereunder  by  the  assessing               authority,   appellate   authority   or    the               Commissioner  shall be called in  question  in               any Court and gave as is provided in  sections               11  and  12  no  appeal  or  application   for               revision shall lie against any such assessment               or order."               In the unanimous judgment of this Court it was               observed:               "  . . jurisdiction of the civil court is  all embra

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cing   except  to  the  extent   it   is excluded   expressly  by   clear   intendment               arising from such law."               Referring  to  Mask & Co.’s case  (supra)  and               Raleigh  Investment Co.’s case (supra) it  was               said that :               "Both these cases thus appear to be decided on               the  basis of provisions in the relevant  Acts               for  the correction, modification and  setting               aside  of assessments and the express  bar  of               the  jurisdiction  of the civil  courts.   The               presence of a section barring the jurisdiction               was  the main reason and the existence  of  an               adequate machinery for the same relief was the               supplementary reason."               Referring  to the dicta in Circo’s Coffee  Co.               v. State of Mysore(1) and C. T.  Santhulnathan               Chettiar   v.  Madras(s)  the  learned   Chief               Justice observed                   the  question  of validity of  the  taxing               laws is always open to the civil courts for it               cannot be               (1)   [1968] 3 S.C.R. 662               (2) 19 S.T.C. 66               (3)   C.A. 1045 of 1966 decided on 20th  July,               1967               151               the implication of any provision to make  such               a decision final or that even void or  invalid               laws must be enforced without any remedy." The  result of the enquiry into the views expressed by  this Court  in  ,a large number of cases was summed up  at  pages 682-683  in seven propositions.  It is not necessary to  set out  the  propositions as they all relate  to  exclusion  of jurisdiction of the civil court by express provisions of law or clear implications therefrom. But a constitutional provision of the kind of Art. 363 tran- scends  this kind of consideration.  All that the Court  has to  see is whether the dispute falls within either  limb  of the  article.   If the dispute is so covered  the  court  is precluded from examining whether the contention of the party asserting a right was genuine or of real substance.  Equally the bar will apply where a party denying the right  asserted or  contesting  the claim put forward is  guilty  of  action which on the face of things appears to be arbitrary if there be  some scope for raising the plea in denial or  contradic- tion.   I have taken the view that the President’s power  or right or duty or obligation to recognise a person as a Ruler arises not merely out of the provisions in Art. 366(22)  but also  the  covenants, Merger agreements  or  Instruments  of Accession the dispute is one which arises out of a provision of  the  Constitution  relating  to  a  treaty,   agreement, covenant  etc. in terms of Art. 363 of the Constitution.   A dispute  as  to right to privy purse, as  already  examined, attracts the same bar. With  regard  to Art. 366(22) read with Art. 363 it  may  be safely  asserted that it could have never crossed the  minds of the makers of the Constitution that in devising a key for the  recognition  of  the  Rulers  and  at  the  same   time protecting  them and the Government of India from  disputes based  on  or about pre-Constitution  covenants,  agreements etc. they were forging a weapon with which the Government of the  day could destroy them all and seek shelter  be-hind  a total embargo on litigation to vindicate their rights.   The debates  of the Constituent Assembly to which reference  has

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already  been made show that Art. 363 was inserted  for  the Purpose  of  giving a quietus to any  dispute  which  anyone might  seek  to raise on the basis of covenants  and  Merger agreements or rights flowing therefrom.  In my opinion,  the object was, as much to save the Rulers who had entered  into covenants  or agreements etc. from their rivals  or  kinsmen coming  to court to upset the Covenants, agreements etc.  as to shield the Government of India from attempts on the  part of  rulers to rip open the covenants. agreements or to  seek recourse to law for establishing their rights. 152 I also take the opportunity of remarking that if ever  there was  an  occasion for the President to make a  reference  to this Court the present was eminently suited to the  purpose. Notwithstanding the wide sweep of the provision for  ousting the jurisdiction of courts as regards disputes covered by it Art.  363  gave express power to the President to  have  the opinion of this Court to guide himself by and when  disputes of  such  public  importance were agitating  the  minds  ’of members of Parliament and of the Cabinet it was not only his right but his duty to consult this Court. I  do not think it necessary to express any opinion  on  the rights or privileges covered by Art. 362 of the Constitution because prima facie they are relatable to the guarantees  or assurances given under the covenants or agreements  referred to  in Art. 291.  How much regard Parliament or  Legislature of States are to pay to such guarantees or assurances is for the  appropriate Legislatures to consider.  I may  only  add that  the  Constitution makers could not  have  contemplated exemption  from  the  impositions such as  those  under  the Wealth Tax Act and the Gift Tax Act inasmuch as such  taxing provisions probably were not contemplated at the time.   The Government  of India in its graciousness saw fit  to  exempt the  Rulers  from  the operation of  these  and  many  other statutes which are still on the statute book.  The  occasion for  considering such statutes has not arisen yet  and  they may be left for future consideration. Mr. Patkhivala’s plea that the act of the President resulted in the destruction of the institution of Rulers and as  such was  invalid  does not bear scrutiny.  The orders  if  valid would  operate  in  the case of each  Ruler  and  have  been challenged  by  the petitioning Rulers in  their  individual capacity.  No body of persons known to law can be called  an institution of Rulers According to the figures given by  Mr. Palkhivala himself Rulership of. over one hundred States has lapsed during the last twenty years ’and the process may  go on  till no Rulers are left.  In this case we are  concerned with  the rights of individual Rulers and not of them  as  a class. In  the result I have to hold that this series of  petitions is  not maintainable remarking, at the same time,  that  the action  of  the  President appears to  be  unjustified.  The President  may,  if  he,  chooses,  guide  himself  by   the exposition  of the law as made above.  What a stroke of  the pen  has  done  may  be undone  by  another  stroke  of  it. "Because  right is right", the President it is hoped,  would "follow  right" as "wisdom in the scorn of  consequence".  I would leave the parties to bear their own costs. 153 Hegde, J. These petitions under Art. 32 of the  Constitution present  for decision common questions of law.  In  each  of these  petitions  the  petitioner  therein  prays  for   the following reliefs               (1)   a writ, direction or order declaring the               order   of   the  President  dated   the   6th

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             September, 1970 to be unconstitutional,  ultra               vires and void and further to quash the same;               (2)   a  writ,  direction or  order  declaring               that the petitioner continues to be the  Ruler               and  as such continues to be entitled  to  the               Privy  Purse  and to his personal  rights  and               privileges as a Ruler;               (3)   a writ, direction or order directing the               Union  of  India  to continue to  pay  to  the               petitioner  the  privy  purse  to  which   the               petitioner  is  entitled and  to  continue  to               recognize  his  Rulership  and  the   personal               rights  and  privileges and to  implement  and               observe the provisions of the Covenant/ Merger               Agreement  entered into between the  Ruler  of               Gwalior and the Government of India; and               (4)   such other further orders as the  nature and    circumstances of the case may require. For pronouncing on the questions arising for decision it  is sufficient if I refer to the facts pleaded in any one of the cases.   Hence  I shall deal with the facts and pleas  put forward  in  Writ  Petition No. 376 of  1970.   Therein  the petitioner’s case is as follows His  father  was the Ruler of Gwalior prior  to  August  15, 1947.   He signed the Instrument of Accession on August  15, 1947.   The  same was accepted by the Governor  General  of India  on  August’  16,  1947.   Under  the  Instrument   of Accession,  he  made over to the Dominion  of  India.  three subjects viz.  Defence, External Affairs and Communications. On  April 24, 1948, he signed a Covenant with several  other Rulers as a result of which the State of Madhya Bharat  came to  be  formed on June 15, 1948.  Thereafter  Madhya  Bharat merged  with the Union of India.  After the Constitution  of India  came into force, the President recognised the  father of the petitioner under Art. 366(22) of the Constitution  as the  Ruler of Gwalior.  After the death of the  petitioner’s father,  the petitioner succeeded to the Gaddi on  July  16, 1961 and thereafter he was duly recognised by the  President under Art. 366(22).  Ever since the merger of the State with the Union of India, the petitioner’s father and later on the petitioner was being paid the privy purse guaranteed 154 under  Art.  291  of the Constitution.   The  petitioner  is entitled  to a ,privy purse of Rs. 10 lacs per year.  He  is also  entitled to other rights and privileges  arising  from the Covenants. Prior  to  August  15,  1947, the Ruler  of  Gwalior  was  a Sovereign though  his  sovereignty  was  subject  to   the paramountcy  of  the  British Crown;  but  that  paramountcy lapsed  on  August  15,  1947 as a  result of  the  Indian Independence Act, 1947.  Consequently the Ruler ,of  Gwalior as well as other Rulers became absolute Sovereigns.  In law they  were free to accede to either of the two Dominions  of India and Pakistan or to remain independent.  But by  stages the Indian States adjoining the Dominion of India merged  in the  Dominion  of India.  After their merger the  Rulers  of those  States  had ,no ruling powers.  They  had  only  such rights  and privileges as were recognized or  created  under the  Covenants entered into by them with the  Government  of India and those embodied in the Constitution.  On the coming into force of the Constitution all the former Rulers of  the Indian States that had merged with the Dominion of, India as well  as  their quantum subjects became  citizens  of  India having  all  the  rights  and duties  of  citizens  of  this country.   From about 1967, there was a move in  the  ruling

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party  to abolish the privy purses guaranteed to the  Rulers under the Constitution as well as the privileges  guaranteed to them under the Covenants and agreements and recognised in Art.  362.   Consequently the Government moved  in  the  Lok Sabha on September 2, 1970, the Constitution (Twenty fourth) Amendment  Bill,  1970 to delete certain provisions  of  the Constitution relating to the guarantees given to the  Rulers about  their privy purses as well as privileges.  That  bill was  passed  in  the  Lok Sabha but it  failed  to  get  the requisite  majority  in  the Rajya Sabha.   The  motion  for consideration of the bill was rejected at about 4-30 p.m. on September  5, 1970.  The same evening the Union Cabinet  met and  decided  to  advise  the  President  to  withdraw   the recognition  of  the  Rulers so that the  privy  purses  and privileges  guaranteed to the Rulers may be  abolished.   On the  same  night,  the President  purporting  to  act  under cl .(22) of Art. 366 of the Constitution signed in his  Camp at  Hyderabad an Instruments withdrawing recognition of  all the  Rulers.  After obtaining his signatures, the  concerned document  or  documents were flown back to  Delhi  the  same night  and the impugned orders issued on September 6,  1970. On  the  strength of these orders, the Government  of  India asserts  that all the Rulers in India had been  derecognized and consequently none of them is entitled to the rights  and privileges to which they were entitled as Rulers. It  is  contended  on  behalf of  the  petitioners  that  in exercise   of   his  powers  under  Art.  366(22)   of   the Constitution,  the  President is not  competent  to  abolish Rulers  as  a class and therefore the  impugned  orders  are nullity.  The farther contention of the peti- 155 tioners is that the rights conferred on them under Arts. 291 and  362  of  the  Constitution as  well  as  under  various statutory  provisions or rules having the force of  law  are fundamental  rights and as such they cannot be abolished  by an  executive  order.   It  is  said  the  impugned   orders contravene  Axts.  19(1) (f), 21, 31 (1), 31(2),  51(3)  and 73(1)  of  the Constitution.  According to  the  petitioners Arts. 291 is a mandatory provision and it is not open to the Government   to   refuse  to  obey  the   mandate   of   the Constitution.  The petitioners also complain that in  making the  impugned orders, the President not only  acted  outside the  scope of Art. 366 (22) of the Constitution but he  also thereby  violated Art. 53 (1), 60, 73(1), 362, 291,  112  to 114 of the Constitution.  The petitioners’ further grievance is  that under various statutes as well as under the  Merger Covenants  they  are  entitled to  certain  privileges;  the President  by purporting to take away those  privileges  has contravened Arts. 14 and 21 of the Constitution.  It is also said that the Council of Ministers were guilty of mala fides in advising the President for making the impugned orders for collateral   reasons   and  for  the,  sake   of   political exigencies.  According to the petitioners, Art. 363 of’  the Constitution  does not bar the jurisdiction of the Court  in granting the reliefs prayed for by them. The respondent in its reply does not deny that the object of the  impugned orders was to abolish the Rulers as  a  class. It contends that the present policy of the Government is not to  have  any Rulers in this country or to allow  them  any rights  or privileges as Rulers.  It is contended  that  the respondent has right to abolish Rulership in exercise of its power  under Art. .366(22) which power_according to it is  a sovereign  power; the decision of the Government to  abolish Rulership  is a political decision and as such the  same  is not  open to be questioned in municipal courts;  the  rights

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conferred under the relevant Covenants are not perennial and are  inherently temporary in character and are liable to  be varied or repudiated in accordance with the State Policy  in the  interests of the people.  It is further pleaded that  a fiduciary  duty is cast upon the Government not to  continue feudal  institutions and anachronistic systems  against  the interests  of the people; to respect and give effect to  the needs  and  wishes  of the people and to  the  will  of  the representatives of the people, the impugned orders have been passed.  According to the respondent this Court is precluded from going into the validity of the impugned orders in  view of  Art.363.  As  regards  Art.291 the  plea  taken  by  the respondent is; that it confers no legal right on the Rulers. That  Article  merely lays down the source  and  method  of payment of the privy purses.  The respondent takes the stand that  this Court cannot go into the scope or effect of  Art. 291,  in  view of Art. 363.  So far as  the  Covenants  and Agreements are concerned it is urged on its behalf that the rights,  liabilities  or obligations arising  therefrom  are outside the ’jurisdiction of this Court firstly  11-L744SUP.CI/71 156 because  they arise from political agreements  between  High Contracting  Parties and secondly because of the  bar  under Art.363.  It is next contended on behalf of  the  respondent that  neither  under  the Covenants nor  under  any  of  the provisions  of  the Constitution any fundamental  right  was conferred on any Ruler and hence the, petition under Art. 32 is  not maintainable.  It is ’also urged on, behalf  of  the respondent that Art. 362 of the Constitution does not confer any  right on the Rulers and any failure to obey the  direc- tion  given in that Art. does not lead to any  violation  of the: provision of the Constitution.               From the pleadings, the following issues arise               for decision               (1)   What  is the scope of Cl. (22)  of  Art.               366 ? Does it confer on the President power to               abolish  Rulership ? Are the  impugned  orders               invalid  for any of the reasons  mentioned  in               the Writ Petitions ?               (2)   Does Art. 291 impose any mandatory  duty               on  the Government and  confers  corresponding               rights on the Rulers ?               (3)   What is the scope of Art. 362 ?               (4)   Does  Art. 363 exclude the  jurisdiction               of  this  Court from considering  whether  the               impugned               orders  are  ultra  vires the  powers  of  the               President  and-  whether there  has  been  any               violation   of  Arts.  291  and  362  of   the               Constitution ?               (5)   Are these petitions under Art. 32 of the               Constitution  maintainable ? What  fundamental               rights  of the petitioners, if any, have  been               infringed and               (6)   What relief, if any, the petitioners are               entitled to in these petitions ? Before  proceeding to consider and pronounce on  the  issues formulated above, it would be useful to briefly refer to the historical  background leading to the merger of  the  Indian States  in the Indian Union as both the petitioners and  the respondent  have laid great stress on the same.  During  the time of the British rule. there were over 500 Indian  States possessing varying degrees of sovereignty.  In the matter of internal  administration,  most of the Rulers  had  complete

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freedom.  But their sovereignty was subject to the treaties, engagements and sanads entered into by them with the British Crown  and  also  the  paramountcy  of  the  British  Crown. Paramountcy  was  an  undefined  concept.   It  was  an  all pervading  power.  The Butler Committee declined  to  define its scope but 157 said  that  "paramoutcy was paramount’.   Paramountcy  meant just what the British Government choose, it to mean.  It was a  convenient  fiction  devised by  the  imperial  power  to further  its  imperial interest.  Paramountcy did  not  flow from treaties or international law.  The sanction behind  it was the British military strength.  Subject to the  Imperial needs  the Rulers of Indian States were left free to  govern their ’States as they thought best though in few cases, when the  Rulers  were guilty of gross atrocities  the  paramount power  intervened  even in  their  internal  administration. Government  of  India  Act,  1935  visualised  a  Federation consisting  of  provinces  as well as  Indian  States.   The States were expected to accede to the Federation on  limited number of subjects retaining their sovereignty in respect of other  subjects.   But the States were so jealous  of  their rights that it was not possible to persuade them to join the Federation.   Hence,  the Federal part of  the  Constitution visualised by the Government of India Act, 1935 did not come into  being.  After World War 11 when it  became  inevitable for the British Government to grant freedom to this country, the  question  as to the future relationship of  the  Indian States  with the Dominion of India assumed  importance.   As there  was no agreement between the concerned  parties,  the British Government under the Independence Act, 1947  divided the  then British India into two parts, India and  Pakistan. So  far as the Indian States were concerned, it allowed  its paramountcy to lapse and those States were asked, if they so choose, to enter the new relationship with one or the  other of  the Dominions or remain independent. The paramountcy  of the  British Crown was not inherited either by India or  by. Pakistan. It was allowed to lapse. This situation created  a crisis. There was an imminent threat to the unity of  India, politically  as well as economically. The  situation  called for the highest degree of. statesmanship on the  part of our leaders.  Naturally  the Rulers of the  Indian  States  were anxious  to remain as independent sovereigns but they  could not have been oblivious of the internal and external dangers to  their  authority. It was a highly  explosive  situation. Sardar  Vallabhbhai  Patel with his political  sagacity  and pragmatic approach, availing himself. of the co-operation of Lord  Mountbatten  and the assistance of his  energetic  and tactful  Secretary, V. P. Menon first persuaded  practically all  the  Rulers to accede to India on three  subjects  viz. Defence, External Affairs and Communications and  thereafter stage by stage drew them closer to the Dominion of India and finally persuaded them to merge with the Dominion of  India. All  this was done in the course of about two years, a  feat unparalled  in history. The saga of the integration  of  the Indian  States  into the Dominion of India will  remain  the most  exciting and most glorious chapter in the  history  of our country. This mighty achievement could not have been had peacefully but 158 for the patriotism and farsightedness of many of the  Rulers of  the  Indian States.  Sardar Patel told  the  Constituent Assembly  that the Rulers of the Indian States were the  co- architects of India’s unity. But it was said on behalf of the respondent that the  Rulers

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merged, their States in the Dominion out of sheer  necessity and  not out of any patriotism, they were not in a  position to resist the compulsion of geography and pressure of  their subjects  in  favour of self Government and  therefore  they merely  made  a virtue of necessity.  It may  be  that  they acted in self-interest.  But there can be ,no doubt that  it was  enlightened  self-interest.   Sardar  Patel  told   the Constituent  Assembly  on  October 12,  1949  :  "There  was nothing to compel or induce the Rulers to merge the identity of their States.  Any use of force would have not only  been against  our professed principle but would have also  caused serious  repercussions.  If the Rulers had elected  to  stay out, they would have continued to draw the heavy civil  list which  they  were drawing before and in  large,  number  of, cases. they could have continued to. enjoy unrestricted  use of the State revenues.  The minimum which %ye could offer to them.  as quid pro quo for parting with their ruling  powers was   to  guarantee  to  them   _privy  purses  an   certain privileges  on a reasonable and defined  basis."  Proceeding further the Sardar exhorted the Constituent Assembly.   "The capacity for mischief and trouble on the part of the  Rulers if the settlement with them would not have been reached on a negotiated basis was far, greater than could be imagined  at this  stage.   Let  us  do justice to  them,  let  us  place ourselves  in their position ’and then assess the, value  of their sacrifice.  The Rulers have now discharged their  part of the obligations by transferring all the ruling powers and by agreeing to the integration of their States.  I The  main part  of our obligation under these Agreements is to  ensure that-the  guarantees given by us in respect of privy  purses are  fully  implemented.  Our failure to do so  would  be  a breach   of   faith   and  and   seriously   prejudice   the stabilisation of the new order".  Even quite recently,  both our  President  and  the ’Home  Minister  acknowledged  with gratitude the sacrifice made by, the ’Indian Rulers.  But it was  argued  onbehalf of the respondent that we  should  not take   those  utterances  at  their  face  value.   It   was indirectly suggested that those expressions were  platitudes intended to achieve some political purposes.  If that be so, all  that  one  can  say is,  mysterious  are  the  ways  of politics. The respondent in its counter-affidavit has taken the  stand that  the people of this country having become conscious  of their  social.  and economic rights would not  tolerate  any longer the concept of Rulership or the privy purse or any of the privileges 159 incorporated in the Covenants and Merger Agreements.  There- fore it was the duty of the Government to give effect to the will  of the people.  It has also taken the stand  that  the concept  of  Rulership,  privy  purse  and  the   privileges guaranteed to, the Rulers without any relatable function and responsibility  have  become  incompatible  with  democracy, equity and social justice in the context- of India of today. These contentions raise political issues.  This Court is not the  forum for going into these issues nor is  it  concerned with  the political passions surrounding the issues  arising for  decision  in this case.  Our primary function  in  this case.  is  to  interpret  the  relevant  provision  of   the Constitution  and  to  see. whether  the  complaint  of  the petitioners that some of their fundamental rights have  been infringed is correct. It is also not for this Court, except to the extent it bears on the question of interpretation of the Constitution, to go into   the  historical  background  of  any   constitutional

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provision.   If  the  meaning of a provision  is  plain  and unambiguous,  its historical background becomes  irrelevant. But if there is any ambiguity, ’in interpreting the same, it is.  permissible, for the Court to take  into  consideration the object intended to be achieved by that provision as well as  the  surrounding circumstances which may bring  out  the intention of the Constituent Assembly. The  respondent, though in a somewhat vague way, has  raised the  plea of State policy.  That plea appears to me  to  be irrelevant in the context of this case.  If the Constitution has  laid  down a policy, as is contended on behalf  of  the petitioners,  with  respect  to matters with  which  we  are concerned, that policy cannot be departed from either by the legislature  or by the executive.  Neither  the  legislature nor  the executive can have a policy which runs  counter  to the  policy laid down by the Constitution.  In this  country the  voice of the Constitution is paramount.  On matters  on which the Constitution speaks, no one else can speak, Every organ  of the State in this country has to  function  within the  limits prescribed by the Constitution.It has  no  power dehors  that derived from the Constitution.  Its powers  are only those The learned Attorney-General in the course of his arguments, time and again, tried to impress on us that the will of  the people  has to be respected and as it is the desire  of  the people  that  Rulership should be abolished, it  had  become imperative  for  the Government to advise the  President  to make the impugned orders. The petitioners deny that there is any  such  public opinion.  We are not in a position  to  go into   this   controversy.   Our  duty  is   to   obey   the Constitution.   The  question  of  public  opinion  is   not relevant  for our purpose.  Many of the safeguards  provided in 160 the Constitution are for the benefit of the minorities.  The Government  might  have acted with the best  of  intentions. But  the  real question is whether it has acted  within  the powers  conferred  on  it  by  the  Constitution.   In  this connection  it would be worthwhile to borrow and adapt  some (1)  the observations of Chief Justice Patanjali  Sastri  in State  of  Madras v. V. G. Row(1).  If the  courts  in  this country  face  up to, important and none too  easy  task  of declaring  void any of the important policy decisions  taken by  the Government it is not out of any desire to  tilt  at executive  authority  in  a crusader’s spirit,  but  in  the discharge   of  a  duty  plainly  laid  upon  them  by   the Constitution.   This  is  especially  true  as  regards  the fundamental rights, as to which this Court has been assigned the role of a sentinel on the quivive.  In these cases as in other  cases  we do not seek to sit in judgment  on  Govern- ment’s  policies.  They are the concern of  the  legislative and the executive organs of the State.  But the Constitution has  imposed  a special duty on this Court to  preserve  and protect  the Constitution--we, only seek to  discharge  that duty. Now  coming  to  the scope of cl. (22) of Art.  366,  it  is necessary  to  notice  that Art. 366  is  an  article  which defines  30,  expressions appearing in one or  more  of  the articles in the Constitution.  That article starts by saying that  "In  this Constitution, unless the  context  otherwise requires, the following expressions have the meanings hereby respectively assigned to them.......". From  this  it  is  clear that  the  meaning  given  to  the expressions  mentioned  in  that article are  only  for  the purpose  of the Constitution and not for any  other  purpose as he

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ld by this Court in Maharaja Pravir Chandra Bhanj  Deo Kakatiya  v.  State of Madhya Pradesh (2 ). Clause  (15)  of Art. 366 defines an "Indian State" as meaning "any territory which the Government of the Dominion of India recognised ’as such  a State".  It may be noted that no "Indian  State"  as such exists after the Constitution came into force.  But yet as that expression has been used in the Constitution in some places for certain purposes, it became necessary to  define, that  expression  and not because that there  is  an  Indian State  now.  Similarly Rulers of Indian  States  disappeared as  s oon as their territories were merged in India and  all those  quandum  Rulers became citizens  of  India-see  Bhanj Deo’s case (supra) and H. H. Maharaja of Udaipur v. State of Rajasthan and ors.(3) The Rulers referred to in Art. 366(22) have  no kingdom or subjects to rule.  They have  no  ruling power.  They do not have dual capacity firstly ’as  citizens of India and secondly as Rulers.  Their rulership is  merely a status entitling them to privy purse and (1)  [1952] S.C.R. 597 at p. 605. (3) [1964] 5, S.C.R. I (2) [1961] 2, S.C.R, 501. 161 certain  privileges.  As Arts. 291, 362, 366(21)(a) and  (b) (before its deletion) as well as Entry 34 of List I of  Sch. VII  refer  to Rulers, it became necessary  to  define  that expression.               Art. 366(22) defines "Ruler" thus:               "Ruler"  in relation to an Indian State  means               the Prince, Chief or other person by whom  any               such  covenant or agreement as is referred  to               in clause (1) of Art. 291 was entered into and               who  for the time being is recognised  by  the               President  as  the  Ruler  of  the  State  and               include  any person who for the time being  is               recognised  by the President as the  successor               of such Ruler.               " This clause has two parts namely :               (1)   the Prince, Chief or other person of  an               Indian State who had entered into any Covenant               or  Agreement as is referred to in cl. (1)  of               Art.  291  and  who  is  for  the  time  being               recognised  by the President as the  Ruler  of               the State; and               (2)   any  person  who for the time  being  is               recognised  by the President as the  successor               of  such a Ruler namely the Ruler who  entered               into  the  Covenant or Agreement  referred  to               earlier and recognised by the President. The  words "other person" in the first part of Art.  366(22) means  someone  analogous to a Prince or Chief of  a  former Indian State who had entered into the Covenant or  Agreement referred to in that clause.  It cannot be some third  person because, no person other than a ruler of an Indian State had entered into any Covenant or Agreement with the Dominion  of India.   The  words "other person" should be  read  ajusidem genesis  with  the  words  "other  person"  should  be  read ejusidem genesis with the words were known by various  names such as Maharana,, Maharaos, Maharaja, Nizam etc.  To  avoid listing  all those names in Art. 366(22), the draftsman  has used  the  words "other person" but the,  meaning  of  those words  has  been made clear by the  words  accompanying  the words  "other person’ viz. by whom any such agreemeat as  is referred to in cl. (1) of Art. 291 was entered into and  who for the time being is recognised by the President as  Ruler. Now  coming to the second part of that clause,  ’here  again

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the  words  "any  person" refers to the person  who  at  the relevant  time  is the successor of the person  who  entered into  the Covenant or Agreement.  This is made clear by  the expression  "for  the  time  being  is  recognised  by   the President as the successor of such Ruler", such Ruler  being the  Ruler referred to in the first limb  of  the  clause. Art. 366(22) contemplates two classes of persons who are  to be recognised by the President as Rulers.  The first group 162 consists of those persons who entered into the Covenant with the Dominion of India and the second group their successors. Coming  to  the first group, the President has no  power  to recognise  any  one  other than who  had  entered  into  the Covenant  or  Agreement and so, far as the second  group  is concerned, he can only recognise the successor of the person who  had  entered  into  the  Covenant  or  the   Agreement. "Successor"  is a term of law.  Succession is  regulated  by law  or  custom.   It,  is no doubt true  that  it  "or  the President to decide as to who is the, successor for the time being  ,of the person who had entered into the  Covenant  or Agreement.  The President cannot create a successor.  He can only recognise the successor.  His power is only to find out who  is the successor at the relevant time of the Ruler  who entered into the Covenant ,or Agreement.  Recognition is not the same thing as appointment.  Recognition means the  power to  locate  and  not a power to  create.   Hence  the  power conferred  on  the President under the second part  of  Art. 366(22) is a very limited power.  That power is no doubt  an executive  power  but  the  same  has  to  be  exercised  in accordance with law.  In other words it has to be  exercised as  a  ,quasi-judicial power.  SD far as the first  part  is concerned,  the  President  has no power  to  recognise  any person other than the Ruler who entered into the Covenant or Agreement  with the Dominion of India.  We  shall  presently see  that  he has a constitutional duty  to  recognise,  the Ruler  of an Indian State.  Hence the words ",for  the  time being" in the first part of Art. 366 can only come into play if  there was any error in locating the person  who  entered into  the  Covenant  or Agreement, the  condition  for,  the recognition  being  that the person recognised must  be  the person  who entered into the Covenant or Agreement.  So  far as the second part is concerned the expression "for the time being"  is relevant as the question of recognition of a  new Ruler  arises on the death of each Ruler.  On each of  those occasions,  the President has to find out as to who  is  the successor  according  to  law and in  the  absence  of  law, according  to  custom, of the Ruler who  ,entered  into  the Covenant  or  Agreement.  The procedure  of  recognition  of Rulers appears to have been intended as a status symbol  and also  to  avoid the necessity of hunting  up  Covenants  and Agreements at the time of payment of privy purses and  while affor ding other privileges and rights. Art. 366(22) contemplates that for each Indian State,  there shall  be a Ruler at any given point of time.  That  Article does not say that the, President may recognise a Ruler.   On the  other  hand it speaks of the Ruler who  "for  the  time being  is recognised by the President", an expression  which contemplates  the continuity of Rulership and not merely  of its possible existence.  A Rulership of an Indian State can only disappear if both the original, Ruler who entered  into the Covenant or Agreement as well his success ors 163 cease  to exist as in that case President  cannot  recognise any  one  as  the  Ruler of  that  State.   From  the  above discussion it follows that the power of the President  under

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Art. 366(22) is fully regulated. In  this  context  we may refer to  the  definition  of  the "Ruler"  in s. 311 (1) of the Government of India Act,  1935 which says ""Ruler" in relation to an Indian State means the Prince, Chief or other person recoginised by His Majesty  as the  Ruler of the State".  The power to recognise  given  to His  Majesty,under  this section is blanket  power.   It  is subject to no limitation.  Under that section Any one  could have  been recognised as the Ruler of an Indian  State.   No such  power  is  conferred on:  the  President  under  Art.. 366(22). I  shall now proceed to consider whether the  President  has power  to  say  that he will not recognise a  Ruler  for  an Indian State.  It was urged on behalf of the respondent that a  power  to recognise includes a power  not  to  recognise. Evidently this contention is based on s. 21 of the  General, Clauses Act which Says               "Where,  by any Central Act or  Regulation,  a               power to issue notifications, orders, rules or               bye-laws   is  conferred,  then   that   power               includes  a  power, exercisable ’in  the  like               manner  and subject to the like  sanction  and               conditions  if any, to add to, amend, vary  or               rescind  any notifications, orders,  rules  or               bye-laws so issued." In  view  of  Art.  367  of  the  Constitution  unless   the context  .otherwise  requires,  the  General  Clauses   Act, subject  to any adaptations and modifications  made  therein under  Art.  372  applies  for  the  interpretation  of  the Constitution as it applies for the interpretation of an  Act of  the  legislature of the Dominion of India.  I  have  not thought  it  necessary to go into the question  whether  the recognition referred to in Art. 366(22) can be considered as a  power to issue notifications or orders as in  my  opinion that clause imposes a constitutional duty on the  President. No discretion. is left to the President to recognise or  not to recognise the Ruler of an Indian State.  In that view, s. 21 of the General Clauses Act, 1897 is irrelevant.  We  have already.  seen  that  Art. 366(22)  contemplates  that  each Indian State must have a Ruler, at all times so long as  the Ruler  who  entered  into the Covenant  or  Agreement  or  a successor  of his is in existence otherwise Arts.-  291  and 362  will become meaningless.  They will be empty shells  if "Ruler" referred to in Art. 291 (b) Art. 362 and Entry 34 of List  I  of the Seventh Schedule must ,necessarily  be  that person  who  is recognised as Ruler by the  President  under Art.  366(22).   If the President fails to  or  declines  to discharge his function under Art. 366(22), 164 Arts.  291 and 362 would become inoperative.  In effect  the benefit conferred bythose Arts. will be denied to the person entitled to be recognised as a Ruler of a particular  Indian State.   Further the legislative power given under Entry  34 of List I of the Seventh Schedule would disappear.  It is to give meaning to Arts. 291, 362 and Entry 34 of List I of the Seventh  Schedule,  a duty is imposed on  the  President  to recognise  the  Ruler of each Indian State.  In  my  opinion Art. 366(22) imposes a constitutional duty on the President. To enable him to discharge that duty, certain limited powers are; conferred on him.  While discharging his duty under the first part of Art. 366(22), he has to locate the person  who according  to  law  can be said to  have  entered  into  the Covenants  or Agreements and under the second limb his  duty is to find out the successor of the Ruler coming within  the scope   of  the  first  limb.   As  mentioned  earlier   the

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recognition  of  the  Ruler who  executed  the  Covenant  or Agreement is a mere formality.  So far as the recognition of the  successor  of  that  Ruler is  concerned,  in  case  of dispute,  it becomes the duty of the President to decide  as to  who  is  the successor of the  Ruler  who  executed  the Covenant or Agreement at the relevant- time.  Evidently  the Constitution makers were of the opinion that any dispute  as to  who is the "Ruler" for the purpose of  the  Constitution should  not be left to be decided by courts of  law  because such a procedure would involve years of delay in determining the person who is entitled to the benefit of the privy purse and  the  privileges.  Hence that question was left  to  the exclusive  decision  of., the President.  Despite  the  fact that  exclusive power  was  given  to  the  President   to recognise the successor of the original Ruler, the procedure that  invariably adopted in case of disputed succession  was to  act on the basis of the recommendation of either  of  ’a High  Court judge who had inquired into the matter or  of  a committee  presided over by a High Court judge, set  up  for that purpose.  That is what happened when disputes arose  as to the succession to the Rulers of the States, of Sirohi and Dholpur.  In my opinion Art. 366 (22) imposes a duty on  the President and for that purpose has conferred on him  certain powers.  In other words the power conferred on the President under  that provision is one coupled with duty.  There are similar   powers  conferred  on  the  President  under   the Constitution.  Under Chap.  XVI of the Constitution  certain special  provisions  were  made for the   benefit  of  the Scheduled Castes and Scheduled Tribes.  Seats were  reserved for  them  both in the Parliament as well as  in  the  State Assemblies.   Certain  other benefits were also  secured  to them in the matter of appointments to services and posts in connection with the affairs of the Union or of a State.  But the Constitution did not specify which castes were Scheduled Castes and which Tribes were Scheduled Tribes.  Under  Arts. 341 (1) and 342(1) of the Constitu- 165 tion,  the President was given power to specify  the  castes which  he considered to be Scheduled Castes and  the  Tribes which he considered to be Scheduled Tribes.  Though both the Articles say the President "may" specify the Castes which he considers  as  Scheduled  and  Tribes  which  he   considers Scheduled,  it  is  clear that  a  constitutional  duty  was imposed on him to specify which castes were Scheduled Castes and  which Tribes were Scheduled Tribes for the  purpose  of the  Constitution.  The word "may" in those clauses must  be read  as  "must" because if he had failed  or  declined  to. specify the Castes and Tribes, Arts. 330, 332, 334, 335, 338 and 340 would have become inoperative and the constitutional guarantees  given  to  the Scheduled  Castes  and  Scheduled Tribes would have become meaningless.  At this stage it  may be  noted that under Art. 366(24) and (25) Scheduled  Castes and  Scheduled  Tribes are defined as  such  Castes,  races, tribes,  tribal communities or their parts or groups  within them  as  are  deemed under Art 341  and  342  respectively. Again  under  ’cl. (7) of Art. 366, the President  is  given power  to determine for the purpose of the Constitution  the "corresponding  Provinces" "corresponding Indian  State"  or "corresponding  State" in case of doubt.  This, again  is  a duty  imposed  on  the  President.   He  cannot  refuse   to discharge that duty. Now  coming to the contention that power to  recognise  the: Rulers  includes power not to recognise, we shall  test  the correctness of that contention with reference to some  other Articles  in  the  Constitution  which  deal  with   certain

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constitutional  duties  of  the  President.   The  power  to appoint  the Election Commission is that of  the  President. The Election Commission alone can hold the elections of  the President,  Vice-President, members of that  Parliament  and the  State  legislatures.  The President cannot  decline  to appoint the Election Commissioners.  It is not in the  power of the cabinet to advise the President not to appoint one or more  of Election Commissioners even if some future  cabinet should think that the elections are trappings of  feudalism. Similarly  the  cabinet cannot advise the President  not  to appoint a Governor and thus destroy the federal structure of our  Constitution  or not to appoint the  Chief  Justice  of Supreme  Court  or of the High Courts  and’  thereby  remove those  courts  and thus make a mockery  of  the  fundamental rights.   The  President  cannot  do  indirectly,  what  the legislature  cannot do directly.  It is wrong to  mistake  a duty  for  a  right.  Ruler as referred to in  some  of  the Provisions  of the Constitution is an entity created by  the Constitution to further certain, purposes recognised by  the Constitution.  That entity cannot be abolished either by the executive  or  by the legislature.  Therefore  the  argument advanced  on  behalf  of the respondent that  the  power  to recognise the Ruler includes within itself the Power not  to recognise is clearly a fallacious one.  It is not  necessary for our 166 present purpose to go into the question whether a Ruler once recognised  can be de-recognised by the President and if  so under  what circumstances.  We were told that there was  one instance of derecognition of a recognised Ruler namely  that of  the former Ruler of Baroda.  That derecognition was  not challenged  before  any court.  Hence its  validity  remains undecided.    In  this  case  we  are  concerned  not   with derecognition  of  one or more Rulers for  some  reason  or. other  but of the abolition of Rulership.  For  the  reasons mentioned  earlier, it is not possible to spell out a  power to abolish the Rulership under Art. 3 66 (22). It  was strenuously argued by the learned  Attorney  General that  the power of recognition of the Rulers found  in  Art. 366(22) is a facet of the paramountcy enjoyed by the British Crown before the 15th August, 1947.  No such plea was  taken in  the  counteraffidavit.   The  argument  of  the  learned Attorney General on this point was somewhat indefinite.   He was hesitant to call the power embodied in Art. 366(22) as a paramount power but yet he was repeatedly asserting that  it contains certain aspects of paramountcy.  It is strange that the learned Attorney General representing the Union of India should  have claimed that the Government of India  inherited any  aspects  of the paramountcy exercised  by  the  British Crown.  Paramountcy as claimed by the British Rulers was one of the manifestation of imperialism.  It is surprising  that the  Government  of  this country whose  people  had  fought imperialism for years and who are even today supporting both morally  as  well  as materially  the  countries  which  are fighting  imperialism should claim to have inherited even  a fraction  of  impeperialism should claim to  have  inherited even  a  fraction of impemountcy is the very  antithesis  of rule  of  law.   It  was a power  exercised  by  a  superior sovereign  over the subordinate sovereigns.  I fail  to  see how  the  Government  of  India can  consider  itself  as  a superior power in its relationship with the citizens of this country.   The doctrine of paramountcy even during the  days of  the  Imperial rule had nothing to do  with  the  British Government’s relationship with its subjects.  Herein we  are concerned with the power exercisable by the President  under

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a  provision of the Constitution.  Nature and scope of  that power must be spelled out from the language of the provision and  from  the  purpose  intended  to  be  served  by   that provision. it is an insult to our Constitutionl  to say that any facet of imperialism has crept into it.  One should have thought  that  paramountcy so far as this country  was  con- cerned was dead and was deeply buried as far back as on  the 15th August 1947.  Its resurrection in any form is repugnant to  our ’Constitution.  It is true that even  after  August, 1947, on some occasions some of our leaders, referred to the existence of paramountcy.  But that reference is not to  the paramountcy  which was the insignia of imperialism  but  the paramountcy of geographical 167 compulsions,  economic  compulsions,  the  compulsions,   of public opinion and need for common defence, all operating in favour  of the unity of India.  The effect of  these  forces was  pithly described, as a sort of paramountcy.   But  that paramountcy  has nothing to do with paramountcy  claimed  by the British. The impugned orders are also unconstitutional for the reason that the power conferred under Art 366(22) is exercised  for a  collateral purpose.  As seen earlier, power to  recognise Rulers was conferred for the purpose of implementing some of the provisions of the Constitution and not for denuding  the contents of those provisions.  We have earlier seen how  the impugned  orders came to be made.  The Government  of  India sought to amend the Constitution by deleting Arts. 291,  362 and  clause  22 of Art. 366.  But as the  bill  seeking  the amendment  of  the Constitution failed to get  the  required majority  in the Rajya Sabha, that attempt  failed.   Within hours after the said bill was rejected, the cabinet met  and advised the President to pass the impugned orders.  This  is clearly  an,  attempt to do indirectly what  the  Government could  not  do  directly.   Such an  exercise  of  power  is impermeable    under   Art.   366(22).    Exercise   of    a constitutional  power  for  collateral’  reasons  has   been considered by this Court in several decisions as a fraud  on that power-see Balaji v. State of Mysore(-).  Breach of  any of  the Constitutional provisions even if made to further  a popular   cause   is  bound  to  be   dangerous   precedent. Disrespect  to,  the Constitution is bound to  be  broadened from  precedent  to  precedent and before  long  the  entire Constitution  may  be treated with contempt and held  up  to ridicule.    That   is   what  happened   to   the   Weimar, Constitution.  If the Constitution or any of its  provisions have  ceased to serve the needs of the people, ways must  be found to change them but it is impermissible to by-pass  the Constitutions  its provisions.  Every contravention  of  the letter  or the spirit of the Constitution is bound  to  have chain  reaction.  For that reason, also the impugned  orders must be held to be ultra vires Art. 366(22). The impugned orders also violate Art. 53 (1 ) of the Consti- tution which directs the President that the executive  power of  the Union shall be exercised by him either  directly  or through the, officers subordinate to him in :accordance with the  Constitution.  Further Art. 73(1) prescribes  that  the executive  power-of the Union must be exercised  subject  to the provisions of the Constitution.  The executive is  bound to  obey this mandate.  It, has no, competence  to  exercise the  executive power in violation of the mandates given  by the  C onstitution.   Art.  291  gives  a  mandate  to   the executive to pay the  privy purses guaranteed to the  Rulers exempt from all taxes on income.  Art. 366 (22) (1)  (1963).  Suppl. 1. S.C.R. 439.

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168 imposes a constitutional duty on the President to  recognise the Rulers  of the Indian States.  Art. 362  requires  the executive that due regard should be given to the guarantees and  assurances  given  under the  Agreements  or  Covenants entered  into with the former Rulers of the  Indian  States. The  President on the advice of the cabinet has  disregarded the  mandate  of Arts. 53(1), 73(1),  291,362  and  366(22). That  being so his order must be held to be ultra vires  the Constitution, hence a nullity. It  was urged on behalf of the petitioners that the  members of the  cabinet  who advised the President  to  issue  the impugned orders were bound by their oath to bear true  faith and  allegiance  to the Constitution; but  they  have  shown scant  respect for their oath, treating the same as  a  mere formality; they have thereby not only broken their oath  but have damaged the Constitution as well.  It is not  necessary to pronounce on this contention. In  my opinion it is not open to, the executive or for  that matter  to any of the organs of the State to  disregard  the provisions   ,of  the  Constitution  merely  because   those provisions  do not accord ,with its views.  The  mandate  of every  provision of the Constitution is a  binding  mandate. No  one has power to depart from that mandate or  circumvent it,  whatever  his views about the  appropriateness  of  the mandates may be.  If the Constitution or any part of it has now become out of tune with the present day society of ours, appropriate  steps may be taken to alter  the  Constitution. It is no virtue to uphold the Constitution when it suits vs. What is important, nay necessary, is to uphold it even  when it is  inconvenient to do so. It  was contended on behalf of the respondent that  the  im- pugned  orders were made in exercise of the political  power of the State which according to it, is an incident of  the sovereignty.   In  support of that contention  reliance  was placed  on  the decision of this Court in  Kunwar  Shri  Vir Rajendra  Singh v. Union of India and Ors. (1) The facts  of that case are : After  the  death of the previous Ruler of Dholpur  who  had been recognised by the President under Art. 366(22),  there was  dispute  as regards his successor.   That  dispute  was inquired  into  by a committee presided over  by  the  Chief Justice of the Rajasthan High Court.  On the recommendation of  that committee, the President was pleased  to  recognise Maharaja  Rana  Shri Hemant Singh as the  successor  of  the previous  Ruler.   Kr.  Shri Vir Rajendra  Singh  challenged that decision by means of a .writ petition under Art. 226 of the Constitution.’ That petition was dismissed by the  High Court.  In appeal this Court affirmed- (1)  [1970] 2, S.C.R. 631 169 the  decision  of  the High Court.  I was a  party  to  that decision.    In  that  decision,  it  was  held   that   the recognition  granted  by the President  under  Art.  366(22) could not be challenged in court of law.  The only point  in dispute in that case was as to who was ;the successor to the deceased  Ruler.   This Court came to  the  conclusion  that under  the  circumstances of that case the decision  of  the President  was not open to challenge.  In the course of  the judgment it was observed : ’The  recognition of the Ruler is a right to succeed to  the gaddi  of the Ruler.  This recognition of Rulership  by  the President  is an exercise of political power vested  in  the President  and  is  thus an  instance  of  purely  executive jurisdiction of the President.’

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What is said in that case is that the President while acting under Art. 366(22) is exercising his executive  jurisdiction and  that jurisdiction was described as  "political  power". That  expression may be inappropriate but that is  not  the ratio of the decision.  It was a casual observation.   There is nothing like a political power under our Constitution  in the  matter  of relationship between the executive  and  the citizens.   Our  Constitution recognises only  three  powers viz.  the  legislative power, the, judicial  power  and  the executive power.  It does not recognize any other power.  In our  country the executive cannot exercise any  ’sovereignty over  the citiznes.  The legal sovereignty in  this  country vests with the Constitution and the political sovereignty is with the people of this country.  The executive possesses no sovereignty.  There is no analogy between our President  and the  British  Crown.   The President is a  creature  of  the Constitution.   He  can  only act  in  accordance  with  the Constitution.  It is true that some aspect of the  executive power  of  the  Government is for the  sake  of  convenience called  political power but it is nonetheless  an  executive power derived from the Constitution. It was next urged that we cannot go into the validity of the impugned  orders or even as to the scope of Art. 366(22)  in view  of Art. 363.  We shall, while examining the  ambit  of Art. 363 see the hollowness of this contention. Earlier,  I have in a general way, referred to some  of  the political events that took place in the years 1947 to  1949. In  order to consider some of the contentions raised by  the Counsel for the parties, relating to the scope and effect of Art.  291,  it is now necessary to refer in some  detail  to some  aspects of those events.  I have earlier  referred  to the  instruments of Accession executed by various Rulers  of Indian States.  By means of those Instruments, the concerned Indian  States  became federating units of the  Dominion  of India though under those Instruments, powers were con- 170 ferred on the Dominion legislature, executive and  judiciary only  in respect of three subjects viz.   Defence,  External Affairs and Communications.  But nonetheless as a result  of the  accession, the concerned Indian States became parts  of the  Dominion of India.  At the time those Instruments  were executed,  no  question  of either  guaranteeing  the  privy purses  to  Rulers  or preserving  their  privileges  arose. Hence  those  Instruments did not refer to  any  rights  and privileges of the Rulers.  Very soon after the execution  of the  Instruments of Accession other developments took  place in  quick  I succession.  Most of the  small  Indian  States fully  merged  in the Dominion of India.  Under  the  merger Agreements the privileges then enjoyed by the Rulers,  their right to get the, privy purses fixed under the agreement  as well as some of the rights of the third parties referred  to in the agreements were guaranteed.  Excepting in the case of Bhopal, the privy purses to be paid to the Rulers were to be paid from out of the revenues of their former States.  Under the  Merger  Agreement entered into  between  the  Governor- General  and the Nawab of Bhopal, the Nawab was entitled  to receive   the  privy  purse  stipulated  therein  from   the Government of India.  It is not stated in the agreement that the same has to come out from the revenues of Bhopal  State. The  privy purses payable to all those Rulers were  free  of all  taxes.   In some of the Merger Agreements  rights  were also  created  in  favour  of the  third  parties,  such  as guaranteeing the continuity of the services of the permanent members of the Public Service of those States as well as the payment  of pensions due to the retired civil servants.   In

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several  of  the Merger Agreements it is  provided  that  if there  was  any dispute as to whether a particular  item  of property  is  the  private  property of  the  Ruler  or  the property of the State, that dispute was to be decided by  an authority  to be appointed as provided in those  agreements. In  most  of  those  agreements, it  is  provided  that  the succession  to the Rulership should be according to law  and custom.   That  provision  was  a  redundant  provision   as succession means succession according to law or custom.   No one can succeed to a deceased person excepting according  to law  or  custom.   Those agreements  also  provide  that  no enquiry  should  be made by or under the  authority  of  the Government  of India and no proceedings should be  taken  in any  court   in their former States in respect  of  anything done  or  omitted to be done by the Rulers  or  under  their authority,  whether  in  a personal  capacity  or  otherwise during  the period of their administration of their  States. In  those  agreements, it is further provided that  no  suit should be brought against the Rulers of the merged States in any  of the Courts in the Dominion except with the  previous sanction of the Government of India. Under  the Merger Agreement executed by the Ruler of  Bilas- pur,  the  Ruler  was  entitled to  a  privy  purse  of  Rs. 7,0,000/- per year 171 but that included a sum of Rs. 10,000/- as allowance to  the Yuvraj.  Under the Merger Agreement executed by the Nawab of Bhopal, the State of Bhopal was merged into the Dominion  of India  for  a period of five years only.  Art.   IV  of  the Merger  Agreement provided that the income derived  annually from  the share of the Nawab in the original  investment  by Qudsia  Begum in the Bhopal State Railway, which  share  was agreed  to  be Rupees five lakhs  and  fifty-five  thousand, shall  be  treated as the personal income of the  Nawab  and shall  be paid by the Government of India to the Nawab,  and his successors.  Article VII of the Agreement provided  that the  succession  to  the Throne of  Bhopal  State  shall  be governed by and regulated in accordance with the  provisions of the Act known as ’the Succession to the Throne of  Bhopal Act of 1947’ which was in force in the State at the time  of the  agreement.  Under the Merger Agreement entered into  by the Maharaja of Manipur, he was given a right to the use  of the Residences known as ’Redlands’ and ’Les Chatalettes’  in Shillong  and the property in the town of Gauhati  known  as "Manipuri Basti" though all those properties were considered as  the  State  properties.  Then  came  the  States  Merger (Governors’  Provinces) Order 1949, an order made  under  s. 290(A)  of  the Government of India Act, 1935.   Under  this Order, several of the States that had merged in the Dominion of India were added on to one or the other of the Provinces. Thereafter  those States became a part of  those  Provinces. Section 7(1) of that Order provides               "All  liabilites  in respect  of  such  loans,               guarantees and other financial obligations  of               the  Dominion Government as arise out  of  the               governance  of  a merged State,  including  in               particular  the liability for the  payment  of               any  sums to the Ruler of the merged State  on               account of his privy purse or to other persons               in  the merged State on account  of  political               pensions  and  the  like, shall  as  from  the               appointed day, be liabilities of the absorbing               province, unless the loan, guarantee or  other               financial  obligation is relatable to  central               purposes."

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This  Order  was made on July 27, 1949.   Under  this  Order fifty-five  Indian  States merged in  the  Bombay  Province, three in Madras, two in Bihar, fifteen in Central  Provinces and  Berar, three in East Punjab and twenty-four in  Orissa. It  was not disputed that the Merger Order is a  legislative measure.   Its  validity was not challenged before  us.   In view of that Order, the liability to pay the privy purses of the  Rulers  whose  former  States had  been  added  to  any particular Province, became the liability of that Province,- a  liability imposed by law.  Whatever might have  been  the nature of the liability undertaken by the Govern- -L744 Sup.  CI/71 172 ment  of  the  Dominion of India under  the  various  Merger Agreements  those liabilities came to be recognised  by  law and  made  a part of the Municipal law and  thereafter  they became  enforceable as against the concerned  Province.   It may  be  noted  that this Order was  made  long  before  the Constitution  came into force.  This Order was  subsequently amended and a few more Indian States were included in one or the other of the Provinces.  From the foregoing, it is  seen that before the Constitution came into force, the  liability to  pay  the  privy purses to several of  the  Rulers  whose States had directly merged with the Dominion of India became that  of some of the Provinces and ceased to be that of  the Dominion of India.  Under the Merger Agreements excepting in the  case of Bhopal, the privy purses to the  former  Rulers were payable from the revenues of their former States.   But after the Merger Order they became payable from the revenues of the concerned provinces.  At this stage we may also  note that  under the Merger Agreements, the privy purses  payable to  the Rulers were free of all taxes.  We may further  note that  under the Merger Agreements, there were several  other rights  created either in favour of the concerned Rulers  or in favour of the third parties.  The Merger Order is  silent about those rights. Now we come to those States which formed unions.  There were five such unions namely 1.   United States of Kathiawar; 2.   United  States  of Gwalior, Indore  and  Malwa  (Madhya Bharat). 3.   Patiala and East Punjab States Union. 4.   United States of Rajasthan and 5.   United States of Travancore and Cochin. Those unions were formed on regional basis.  Various  Indian States  in a particular region merged together and formed  a union.   The concerned States entered into a Covenant  under which  the  union  was  formed.   To  those  Covenants,  the Dominion of India was not a party.  Under those  covenants, the covenanting States agreed to entrust to the  Constituent Assembly  to be formed in accordance with the provisions  of the  covenant  the work of framing a  Constitution  for  the union.  Each of those unions were to have a Rajpramukh   who was  to be the head of the union.’ There were provisions  in those covenants for the formation of a Council of  Ministers to aid and advise the Rajpramukh in the exercise of some  of his functions.  Under those covenants, the Ruler of each  of the covenanting State was entitled to receive a fixed  privy purse annually from 173 the revenues of the concerned union.  That amount was to  be free of all taxes, whether imposed by the Government of  the concerned  union  or  by the Government of  India.   In  the matter   of  raising,  maintaining  and  administering   the military force of the concerned union, the Rajpramukh was to

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act subject to any directions and instructions that may from time  to  time  be given by the Government  of  India.   The covenants provided that the Rulers of the covenanting States as also the members of their families should continue to  be entitled  to  all their personal privileges,  dignities  and titles enjoyed by them.  The succession to the Gaddis was to take  place  according  to law  and  custom.   Questions  of disputed  succession in regard to covenanting  Salute  State were  to  be  decided by the Council of Rulers  on  the  re- commendation  of  a Judicial Tribunal to be  constituted  in accordance  with  the  provisions  of  the  covenants.   The Secretary, Ministry of States on behalf of the Government of India  concuffed to the covenants and guaranteed to all  its provisions.   The concurrence of the Government of India  to the  covenants was necessary as, the covenanting States  had earlier  acceded to the Dominion of India.  In view  of  the formation  of unions, in the place of old Indian States  new units  were  to  come into existence and  therefore  it  was necessary for them to execute fresh Instruments of Accession and that could be done only with consent of the Dominion  of India.   So  far as the guaranteeing of these  covenants  is concerned it could only mean a political guarantee and not a guarantee   in  the  sense  of  undertaking  any   financial obligations.  What the Dominion of India guaranteed was  the provisions of the covenant which included provision relating to   the   formation  of  the  Constituent   Assembly,   the appointment   of  Council  of  Ministers  etc.   Under   the covenants  the  liability  to pay the privy  purses  of  the covenanting  Rulers was that of the concerned union and  not that of the Dominion of India.  Further the privy purses  to be  paid  to the Rulers were to be paid free of  all  taxes. From  these  it is seen that before Arts. 291,362,  363  and 366(22)  came  into force, the Dominion  Government  had  no liability in the matter of payment of privy purses to Rulers of  the covenanting States.  Even in the matter of  deciding any dispute as regards succession, the Dominion of India had no  responsibility.  That had to be decided by the  agencies created  under the covenants.  Under some of  the  covenants some  of  the covenanting Rulers were given  special  rights e.g.  under Art.  XVIII of the covenant under  which  Madhya Bharat union was formed, it was provided               "Notwithstanding  anything  in  the  preceding               provisions  of  this covenant, the  Rulers  of               Gwalior and Indore shall continue to have  and               exercise their present ,powers of  suspension,               remission or commutation of               174               death  sentences in respect of any person  who               may have been or is hereinafter, sentenced  to               death  for a capital offence committed  within               the  territories of Gwalior or of  Indore,  as               the case may be." Under Art.  VIII of the covenant entered into by the  Rulers of Travancore and Cochin forming the United State of Travan- core and Cochin, it was provided that the obligation of  the covenanting  State  of  Travancore to  contribute  from  its general  revenue  a sum of Rs. 50 lakhs every  year  to  the Devaswom fund shall from the appointed day be the obligation of  the United State and the said amounts shall  be  payable therefrom and the Rajpramukh shall cause the said amount  to be paid every year to the Travancore Devaswom Board and  the Executive  Officer  referred to in sub-clause  (b)  of  that article respectively. In respect of the administration of Padamanahhaswamy  Temple the  right  of the Ruler of Travancore was  preserved  under

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Art.   VIII(b)  of  the covenant.   Similarly  the  existing rights of the Rulers of Travancore and Cochin as regards the management  of  certain temples and  funds  were  preserved. They  were  also given a right to nominate some  members  to some of the statutory Boards.  From the foraging it is  seen that under the various covenants, several rights in addition to  the right of receiving privy purses had been created  in favour of the Rulers of some of the covenanting States. In the draft Constitution, there were no articles similar to Arts.  291, 362, 363 and 366(22).  Sometime  before  October 14,  1949 the Ministry of States, which was instrumental  in bringing  about the merger of the States with the  Union  of India  wrote to the drafting committee that  the  guarantees given  to  the Rulers in regard to privy  purses  should  be given  constitutional section.  Further it desired  that  so far  as  the privileges and other rights of the  Rulers  are concerned,   the   same  must  find   recognition   in   the Constitution  though  it  may not be possible  to  give  any constitutional  guarantee  in  respect of them.   It  is  in pursuance of this request the drafting committee  introduced Art.  267(A)  (present Art. 291), Art. 302-A  (present  Art. 362) on October 13, 1949 Art. 303(1) (present Art, 366) (22) on  October 14, 1949 and Art. 302(A) (present Art.  363)  on October 16, 1949 into the draft Constitution. Art.  291  of the Constitution as it now  stands  after  its amendment by the 7th Amendment Act reads :               "Where under any covenant or agreement entered               into  by the Ruler of any Indian State  before               the  commencement  of this  Constitution,  the               payment of any               175               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."               Dealing with Art. 291, this is what the  White               Paper says in paragraph 238 :               "Art.   291,  thus,  embodies   constitutional               sanction   for  the  due  fulfilment  of   the               Government    of   India’s   guarantees    and               assurances  in  respect of  privy  purses  and               provides  for  the  necessary  adjustments  in               respect  of privy purse payments  necessitated               by changed conditions."               Art.  291,  has  four  principal   ingredients               namely               (1)   the   conditions  giving  rise  to   the               liability to pay the privy purses;               (2)   charging of the privy purses payable  on               the Consolidated Fund of India;               (3)   the payment of the same from out of  the               Consolidated Fund; and               (4)   the  sums  so paid to any  Ruler  to  be               exempt from all taxes on income. According to Mr. Palkhiwala, learned Counsel for some of the petitioners,  Art.  291,  guarantees the  payment  of  privy purses   referred  to  in  various  Merger  Agreements   and Covenants  to the concerned Rulers, charges the same on  the Consolidated  Fund  of India and makes them payable  out  of that  fund to the Rulers, exempt from all taxes  on  income. He contended that Art. 291 confers a legal right on a  Ruler

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to  claim the privy purse to which he is entitled  to,  from the Dominion of India.  He asserts that the right created in favour  of the Rulers, is enforceable in court of law.   But according to the learned Attorney-General, Art. 291 does not create  any legal right in favour of the Rulers.  That  Art. merely gives a moral assurance to the Rulers that the  privy purses guaranteed under the Covenants and Agreements will be paid by the Union of India.  He further contended that  Art. 291  merely  recognizes  the obligation  undertaken  by  the Dominion  of  India either under the  Merger  Agreements  or under the Covenants and it does not create any new right  or obligation.  According to him the expression that "such fund shall  be charged on the Consolidated Fund of  India"  does not mean that a lien 176 on the Consolidated Fund is created for the payment of privy purses;  it  only  means that the amount  payable  as  privy purses  is  not votable.  He asserted  that  the  expression "paid  out of" in cl. (b) of Art. 291 merely refers  to  the Fund out of which the payment is to be made and not that  it should  be paid to any person.  Clause (b) of Art. 291  does not  according  to  him  give any  direction  to  the  Union Government  to pay to the Rulers the agreed privy purse  but it merely says that the privy purse, if and when paid to any Ruler will be exempt from all taxes on income. In  my opinion the contentions advanced by the  learned  At- torney-General  are  falacious.   The  liability  undertaken under Art. 291 is a new liability and not an affirmation  of an  existing liability.  As seen earlier, the  liability  to pay the privy purses of most of the Rulers who merged  their States with the Dominion of India had been transfered to one or  the other provinces.  The liability to pay privy  purses to the Rulers who entered into Covenants for forming  unions was that of the concerned union and not that of the Dominion of India.  In the case of most of the Rulers of States which merged  in  the Dominion of India until Art. 291  came  into force,  the  Dominion of India had no liability to  pay  the privy purses. For the first time after Art. 291 came into force, the privy purses  were made payable from out of the Consolidated  Fund of  India.  Till then they were payable firstly out  of  the revenues  of  the  concerned State  which  merged  into  the Dominion of India and later on by one or the other provinces from out of its revenues and in the case of the  covenanting States,  the privy purses payable to the covenanting  Rulers were  payable  from  out of the revenues  of  the  concerned union.  As seen earlier, the privy purses payable either  to the  Rulers  of  the  merged  States  or  to  those  of  the covenanting  States, were free of all taxes.  But the  privy purses payable under Art. 291 are only exempt from all taxes on income and riot all taxes.  To summarize, under Art. 291, the  Union  of  Indian  for the  first  time  undertook  the liability to pay the privy purses in respect of most of  the Rulers of the Indian States.  The fund from which the  privy purses  are  made payable under Art. 291 is  different  from those  from which they were payable earlier.  The  terms  of payment,  to some extent are also different inasmuch as  the privy  purses  provided  under  the  Merger  Agreements  and Covenants  were  free  of all taxes  but  the  privy  purses guaranteed  under  Art.  291 are exempt  only  from  tax  on income. In  support of his contention that the liability  undertaken under  Art.  291, is merely a continuation  of  the  earlier liability  the learned Attorney-General strongly  relied  on the first part of Art. 291 which says :

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177               "Where under any covenant or agreement entered               into  by the Ruler of any Indian State  before               the  commencement  of this  Constitution,  the               payment  of  any sums, free of tax,  has  been               guaranteed or assured by the Government of the               Dominion  of India to any Ruler of such  State               as privy pure........" From this he wants us to conclude that the liability  under- taken  under Art. 291 is nothing but a continuation  of  the liability arising under the Covenants and Agreements.   Here again  the  learned Attorney-General is not  correct.   That part of Art. 291 does not create any liability.  It is  only a  legislation by incorporation.  That part of  the  Article points out the person who is entitled to the privy purse and the  amount  payable to him.  It was  a  legislative  device adopted for the convenience of drafting.  It would have been a cumbersome process to list all the names of the Rulers who are entitled to privy purses and the amount payable to  each of  them.   To avoid that difficulty, relevant  portions  of Agreements  and  Covenants  were  bodily  lifed  from  those documents  and incorporated into Art. 291.  This is  a  well known  drafting device.  Art. 291 is no way linked with  the Agreements  and  Covenants.  The Convenants  and  Agreements only  continue  as evidence as to matters mentioned  in  the first  part  of Art. 291.  After Art. 291 came  into  force, there  is  no legal relationship between the  Covenants  and Agreements and that Article.  That Article read with Article 366(22)  constitute a self-contained code in the  matter  of payment  of privy purses.  Those Articles operate  on  their own force.  In several provisions of the Constitutions,  the device of legislating by incorporation has been  adopted-see Art.  105(3), Art. 106, cls. 2, 3, 7, 8, 9(5) and  12(3)  of the second Schedule. I  am  also unable to accept the contention of  the  learned Attorney-General that the expression "charged on........ the Consolidated  Fund of India" in Art. 291 merely  means  that the amounts payable as privy purse are not votable and  that expression  neither creates a right in favour of the  person in   whose  benefit  the  charge  is  created  nor  is   the Consolidated  Fund  pledged  for the payment  of  the  privy purse.  The Constitution does not define the word  "charge". Therefore  we must understand that word as it is  understood in  law.  According to law the creation of a charge  over  a fund  in respect of an item of payment to a person  means  a conferment of a legal right on that person to get the amount in  question  on  the pledge of the fund.   If  an  item  of expenditure  charged on the consolidated fund  merely  means that that expenditure is non-votable then there was no  need to  provide  in Art. 113 that "so much of  the  estimate  as relates to expenditure charged upon the Consolidated Fund of India  shall  not be submitted to the vote  of  Parliament." That part of Art. 178 113(1) was evidently enacted to make effective the statutory lien  over  the Consolidated Fund created in favour  of  the person  to whom the payment has to be made.   It  emphasises the fact that the pledge created in favour of the person for whose  benefit  the charge is created  by  the  Constitution cannot be taken away even by the Parliament. The  learned Attorney-General and Mr.  Mohan  Kumaramangalam read  to us passages from May’s Parliamentary  Practice  and other  treatises on Parliamentary Practice and Procedure  to show   how  the  practice  of  charging  certain  items   of expenditure  on the Consolidated Fund of England  came  into

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being.   They  also  invited our attention to  some  of  the statutes  passed  by the British  Parliament.   Neither  the treatises  on which they relied nor any of the  statutes  to which  they  referred show that the charging of an  item  of expenditure  on the Consolidated Fund in favour of a  person does  not create a legal right in him to get that amount  or that the same does not pledge the Consolidated fund for  the payment  of  that  amount.  In fact  some  of  the  Statutes referred  to  by  them do show that some  of  the  items  of expenditure  charged on the Consolidated fund were  required to  be paid in preference to the other items.  On the  other hand  Mr.  Palkhiwala referred to us to  the  Dictionary  of English  law  by  Earl Jowitt (1959 Ed) Vol.  1,  page  459, wherein  the  meaning  of the  expression  ’charged  on  the consolidated fund’ is explained thus               "Consolidated  Fund,  a repository  of  public               money  which  now  comprises  the  produce  of               custom, excise stamps and several other taxes,               and   some  small  receipts  from  the   royal               hereditary revenue, surrendered to the  public               use.   It constitutes almost the whole of  the               public   income   of   the   United    Kingdom               (Consolidated  Fund Act, 1816).  This fund  is               pledged  for the payment of the whole  of  the               interest of the national debt of Great Britain               and Northern Ireland (National Debt Act, 1870-               s. 6); and besides this, is liable to  several                             other  specific  charges  imposed  upo n  it  at               various periods by Act of Parliament, such  as               the civil list, and the salaries of the judges               and   ambassadors  and  other  high   official               persons; after payment of which the surplus is               to be indiscriminately applied to the  service               of  the United Kingdom under the direction  of               Parliament"               Section 6 of the National Debt Act, 1870 reads               "6.  Stock Charged an consolidated  fund.--The               annuities   and  dividends   aforesaid   shall               continue  to be charged on and payable out  of               the consolidated fund." 179 The language of this section is similar to that of Art.  291 so far as the creation of "charge’ ’is concerned.  Section 6 of  the National Debt Act, 1870 is according to Earl  Jowitt pledges the consolidated fund of Great Britain and  Northern Ireland for the payment of the whole of the interest of  the national  debt  of Great Britain and Northern  Ireland.   If that  is  the true effect of s.6 of the National  Debt  Act, 1870 the same must be the position under Art. 291.  From the passage  quoted above from the Dictionary of English law  by Earl  Jowitt,  it  is  seen  that as  soon  as  an  item  of expenditure  is charged on the consolidated fund,  the  said act   creates  a  legal  obligation  to  pay  out   of   the consolidated fund that item of expenditure to the person for whose benefit the charge is created.  Secondly that item has to   be   paid  before  paying  the  non-charged   item   of expenditure.    And  lastly  the  charge  created,   pledges the  consolidated  fund  for the payment  of  that  item  of expenditure.  The  practice  of  creating  charges  on   the consolidated  fund  was started for the first time  in  this country  under the Government of India Act, 1935  which  Act was passed by the British Parliament evidently following the British practice.  Arts. 112 to 115 of the Constitution  are similar  to the corresponding Sections in the Government  of

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India Act, 1935. The contention of the learned Attorney General that the  ex- pression "paid out of" in cl. (a) of Art. 291 refers to  the fund  out of  which it is to be paid out and  not  to  the person  to  whom it is payable is also not  correct.   Under Art.  291 as it now stands, there is only one fund and  that is  the Consolidated fund of India.  Therefore there  is  no question  of  pointing out the fund from out  of  which  the payment  is  to be made.  If some amount is required  to  be paid out of the Consolidated Fund of India, it must be  paid out  to  somebody.   There  cannot  be  any  paying  out  in abstract.  To whom that payment is to be made is made  clear by  cl.  (b) of Art. 291. it is to be paid to the  Ruler  as defined in Art. 366(22). Even before Art. 291(2) was deleted the privy purses were to be paid out of the Consolidated fund of India though some of the  States  had  a liability to reimburse the  Union  to  a certain  extent.  According to the learned  Attorney-General on the date when Art. 291 came into force, no Ruler had been recognised  under Art. 366(22).  Therefore we  cannot  spell out  any  commitment under Art. 291.  We have  earlier  seen while  discussing  the  scope  of  Art.  366(22)  that   the President  has a constitutional duty to recognise  a  Ruler. Art.  291  proceeds  on  the basis  that  President  has  to recognise  a  Ruler  to  each  one  of  the  Indian   States contemplated by Art. 366(15).  By recognising the  President merely  locates the Ruler.  He does not appoint or create  a Ruler.   No sooner the President recognizes the Ruler of  an Indian State, 180 he becomes entitled to the privy purse guaranteed under Art. 291 from the date the Constitution came into force.  We  are told that as a fact most of the Rulers who entered into  the Covenants  and Agreements were recognised only in  the  year 1952  but yet they were being paid the amounts agreed to  be paid  as privy purses ever since the Constitution came  into force  and  the  privileges guaranteed  to  them  were  also extended   to  them  even  before  they   were   recognised. Similarly,  we were told that in the case of  successors  of the Rulers when there was no dispute as to succession,  they were  treated  as Rulers for all purposes though  they  were recognised several months after they succeeded to the Gaddi. This  shows  that  the recognition under  Art.  366(22)  was considered  as  a  mere  formality except  in  the  case  of disputed succession. To  my mind Art. 291 is plain and unambiguous.  It  says  in the clearest possible language that the privy purses payable to  the Rulers under the Merger Agreements as well as  under the Covenants are charged on the Consolidated fund of  India and  that they shall be paid out to the Rulers  exempt  from all taxes on income.  No provision of a statute much less  a provision  of a constitutional statute should be read  in  a pedantic  way.   Nor  is it justifiable to  hair  split  the clauses  in  a provision and quibble about their  words.   A constitutional provision is not to be interpreted by  taking words  of the provisions in the one hand and the  dictionary in the other or by taking the meaning given in a decision to a word in different setting.  Each provision must be read as a whole and its meaning understood. We  have earlier seen that under the Merger  Agreements  and Covenants, various rights, liabilities and obligations  mere created.  What the Constituent Assembly did was to  separate two  obligations  out  of them and  give  those  obligations constitutional  sanction  or guarantee.   As  seen  earlier, under   the  Convenants  entered  into  by  the  Rulers   of

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Travancore  and Cochin certain contribution was to  be  made every year to the Devaswom Fund.  This payment is guaranteed under  Art.  290 (A). , Under Art. 291 the  payment  of  the privy  purses is similarly guaranteed Arts. 290(A)  and  291 are more or less similarly worded. If  the  mandate contained in Art. 291 is  an  unenforceable mandate, similar would be the position so far as Art. 290(A) is  concerned.  If the mandates contained in these  Articles are  unenforceable these Articles can only  have  ornamental value.   It  is difficult to believe  that  the  Constituent Assembly would have indulged in an exercise in futility.  We repeatedly  asked the learned Attorney General that if  Art. 291 did not create a legal 181, right,  what purpose that Article was intended to serve  and why  did the Constituent Assembly put that article,  in  the Constitution.  His answer was that under Art. 291 while  the payment  of privy purse received a constitutional  sanction, it received no, constitutional guarantee.  This  distinction to my mind appears, to be a distinction without  difference. Every  constitutional sanction for payment is necessarily  a mandate to pay if that sanction relates to the discharge  of an  obligation.   It  is an enforceable  mandate.   As  seen earlier that a fair reading of Art. 291 shows that there  is a  direction  to pay the privy purses  to  the’Rulers.   The contention of learned Attorney General was that by Art.  291 the Constituent Assembly merely wanted to give some sort  of assurance to the Rulers about the payment of privy purses to them in future so as, to allay their apprehensions that  may not be paid privy purses in future but in reality, no  legal right  was created in favour of the Rulers nor  any  binding obligation  imposed on the Union of India.  It is  difficult to  understand  this Argument.  It will be  an  uncharitable insinuation  to make against the founding fathers  that  all that  they wanted was to, create an illusion in the mind  of the  Rulers  while in reality giving them  no  guarantee  as regards the future payment of the privy purses.  If all that the Constituent Assembly desired was to, give some assurance about  the payment of privy purses in the future  then  Art. 362 would have served that purpose.  In a general sense  the words  "personal rights" include privy purse.  Even  if  the Constituent Assembly wanted to make things clear they  could have  easily  said in Art. 362  "personal  rights  including privy  purse" instead of wasting a whole  article.   Further there  was nor purpose in charging the privy purses  on  the Consolidated fund or giving a constitutional exemption  from payment  of all taxes on income in respect of  privy  purse. No   word   in  the  Constitution  can  be   considered   as superfluous. During  the hearing some the members of the Bench felt  that it  may not be necessary to go into the scope and effect  of Art.  191 in the present proceedings.  It was felt  that  if the  Court came to the conclusion that the  impugned  orders are valid orders then there is an end of the matter.  If  on the other hand, the Court came to the conclusion that  those orders  are  violative of the Constitution then  status  quo ante  would  be  restored.  But both  the  learned  Attorney General and Mr. Palkhiwala insisted that we should pronounce on  the scope and effect of Art. 291, each one for  his  own reason.   The  learned Attorney General repeatedly  made  it plain to us that even if we come to the, conclusion that the impugned  orders are invalid, the privy purses will  not  be paid by the Government, unless we hold that the right  given to the Rulers under Art. 291 is an enforceable one.  This, 182

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is  a  strange stand particularly in view of the  fact  that even  according to him the Constitution has  recognised  the liability  to  pay the privy purses to the  Rulers  and  the obligation in question has received constitutional sanction. It is clear from the stand taken by him that the  Government will  not  respect the mandate of the Constitution  if  that mandate is not enforceable by law. We  have to proceed on the basis that the  learned  Attorney General  made  that  submission  on  the  strength  of   the instructions received by him from the respondent.  But  yet, it  is  difficult to believe that the executive which  is  a creture of the Constitution, whose head (the President)  and the members of the cabinet had taken the oath of  allegiance to the Constitution would take the stand that they will  not respect a mandate of the Constitution unless that mandate is enforceable  in  a court of law.  The  enforceability  of  a constitutional mandate is one thing, the existence of such a mandate  is  another.  Whether a  particular  constitutional mandate is enforceable or not, it is all the same binding on all  the  organs of the State.  No organ of  the  State  can choose to disregard any of the mandates of the Constitution. There  are many mandates in the Constitution which  are  not enforceable through courts of law.  If the executive or  the legislature  or  the judiciary refuse to comply  with  those mandates  they will be not only breaking the oath  taken  by them  but they will be breaking the Constitution itself.   I doubt  whether the grave implications of the stand taken  on behalf of the Government have been realised.               I shall now proceed to Art. 362.  That Article               reads               "In the exercise of the power of Parliament or               of the legislature of a State to make laws  or               in the exercise of the executive power of  the               Union  or of a State, due regard shall be  had               to the guarantee or assurance given under  any               such  covenant or agreement as is referred  to               in  article 291 with respect to  the  personal               rights, privileges and dignities of the  Ruler               of an Indian State."               This  article  clearly links itself  with  the               Agreements   and   Covnants.    It   has    no               independent exercise apart from the  Agreement               and  Covenants.  Mr. Palkhiwala conceded  that               Art. 362 is a provision   of the  Constitution               relating  to  the  Agreements  and  Covenants.               Therefore,  it  follows that  if  any  dispute               arises  in respect of anyright accruing  under               or any liability or obligation arising out  of               Art. 362 then the same would be covered by the               second  .part of Art. 363.  But Mr.  Palkiwala               sought to place his own interpretation on the               word "dispute" found in Art. 363. it is               183               not  necessary for us in this case  to  decide               what  controversy relating to Art. 362 can  be               considered as a "dispute" under Art. 363.   At               present  we have no concrete complaint  before               us relating to the contravention of Art.  362.               It  is  not proper to decide the scope  of  an               article in the Constitution in abstract.   The               scope  of Art. 362 as well as the  meaning  of               the  expression "dispute" in Art. 363  can  be               best  considered when a proper case  comes  up               for  decision.   In  this  view,  I  have  not               thought  it necessary to go into the scope  of

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             Art., 362.               This  takes me to Art. 363(1).   That  Article               reads               "Notwithstanding anything in this Constitution               but subject to the provisions of article  143,               neither the Supreme Court nor any other  court               shall have jurisdiction in any dispute arising               out  of any provision of a treaty,  agreement,               covenant,  engagement, sanad or other  similar               instrument which was entered into or  executed               before  the commencement of this  Constitution               by  any Ruler of an Indian State and to  which               the Government of the Dominion of India or any               of its predecessor Governments was a party and               which  has or has been continued in  operation               after such commencement, or in any dispute  in               respect  of  any right accruing under  or  any               liability or obligation arising out of any  of               the  provisions of this Constitution  relating               to  any  such  treaty,  agreement,   covenant,               engagement,    sanad    or    other    similar               instrument."               Under  cl. (2) of that Article "Indian  State"               is defined for the purpose of that article  as               meaning  any territory recognised  before  the               commencement   of  the  Constitution  by   His               Majesty  or the Government of the Dominion  of               India  as being such a State, and the  "Ruler"               for  the  purpose of that article  is  defined               thus               " "Ruler" includes the Prince, Chief or  other               person recognised before such commencement  by               His Majesty or the Government of the  Dominion               of India as the Ruler of any Indian State." Art. 363 has two parts : the first part deals with  disputes arising  out  of any provisions of a  treaty,  agreement  or covenant  etc., and the second part with dispute in  respect of  any right accruing under or any liability or  obligation arising  out of any of the provisions of  the  Constitution, relating   to   any  such   treaty,   agreement,   covenant, engagement, sanad or other similar instrument. 184 Dealing  with Art. 362 and 363 this is what the White  Paper says in paragraph 240 (at p. 125)               "Guarantees regarding rights and privileges.-               Guarantees have been given to the Rulers under               the  various Agreements and Covenants for  the               continuation  of their rights,  dignities  and               privileges.  The rights enjoyed by the  Rulers               vary  from State to State and are  exercisable               both  within  and without  the  States.   They               cover  a variety of matters ranging  from  the               use of the red plates on cars to immunity from               Civil and Criminal jurisdiction and exemptions               from customs duties etc.  Even in the past  it               was    neither   considered   desirable    nor               practicable to draw up an exhaustive list of               all  these  rights.  During  the  negotiations               following introduction of the scheme  embodied               in  the Government ,of India Act,  1935.   The               Crown  Department had taken the position  that               no more could be done in respect of the rights               and  privileges enjoyed by the Rulers  than  a               general  assurance  of the  intention  of  the               Government   of   India  to   continue   them.

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             Obviously,  it  would have been  a  source  of               perpetual regret if all these matters had been               made as justiciable.  Article 363 has,  there-               fore  been embodied in the Constitution  which               excludes specifically the Agreements of Merger               and  the  Covenants from the  jurisdiction  of               Courts except in cases which may be refered to               the  Supreme Court by the President.   At  the               same time, the Government of India  considered               it  necessary that constitutional  recognition               should   be  given  to  the   guarantees   and               assurances which the Government of India  have               given in respect of the rights and  privileges               of  Rulers.   This is contained in  Art.  362,               which  provides that in the exercise of  their               legislative   and  executive  authority,   the               legislative and executive organs of the  Union               and  States  will  have  due  regard  to   the               guarantees given to the Rulers with respect to               their   personal   rights,   privileges    and               dignities." From  the above passage, it is clear that according  to  the Government’s understanding of Art. 363, that article  merely deals with matters coming under Art. 362.  That is also  the contention of the petitioners.  But according to the learned Attorney   ’General   that   article   excludes   from   the jurisdiction  of all courts including this Court not  merely those  matters that fall within the ’scope of Art.  362  but also the right arising from Art. 291.  It 185 was  urged  by  him  that Art. 291  also  protects  only.  a personal right.  Therefore it is a matter that falls  within the  scope  of Art. 362, Consequently any  dispute  relating thereto  is  excluded from the jurisdiction  of  this  Court under  Art.  363.   Privy purse was taken  out  for  special treatment by the Constitution under Art. 291.  Therefore  it is  excluded from the general provision in Art. 362.   Arts. 291 and 362 have to be construed harmoniously.  It is a well known rule of construction that a special provision excludes the   general  provision.   Hence  I  have  to  reject   the contention  that  Art. 363 includes the right to  get  privy purses  because it also comes within the scope of Art.  362. If  it  is otherwise, there was no need to enact  Art.  291. Further there was no purpose in guaranteeing the payment  of privy  purses under Art. 291 and then taking away the  right to  recover them under Art. 363.  We have earlier seen  that in  the  case of most of the Rulers, the  right  to  receive privy  purse was an enforceable right even before  Art.  291 came  into  force. it is not easy to accept  the  contention that  what was an enforceable right was  made  unenforceable under  the  Constitution.   If the  contention  advanced  on behalf of the respondent is correct the, purpose of Art. 291 was to take away an existing enforceable right, at any  rate in  the case of several Rulers and substitute the same by  a recognition,  devoid of all legal contents.  To say that  is to  be  cynical about the august body i.e.  the  Constituent Assembly.  the Constituent Assembly could not  have  enacted Art 291 to show its contempt for the Rulers of Indian States as well as for the recommendation of States Ministry  headed by Sardar Patel, the maker of modern India.  If two or  more provisions  in  the  Constitution deal  with  one  group  of topics,  those  provisions  have to  be  read  together  and interpretted harmoniously.  It is not proper to say that the Constitution  is  speaking  in two voices,  as  the  learned Attorney General wants us to do or that it takes away by the

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right hand what is gave by the left hand.  Therefore we have to read Art. 363 harmoniously with Art. 291.  That is equal- ly  true of Arts. 363 and 366(22).  The rule  of  harmonious construction  is a well known rule.  If  the  aforementioned articles  are  harmoniously interpretted then  the  position becomes clear.  The purpose of Art. 363 is made clear in the White  Paper.  Under the Merger Agreements as well as  under the Covenants, various rights were conferred and  privileges assured to the Rulers.  Some of the agreements entered  into between  the former Rulers and His Majesty’s  Government  or the Dominion of India are undoubtedly acts of State.  So far as  the Covenants ,are concerned, the question whether  they were  acts of State or constitutional documents is a  highly debatable question.  Rights accruing as well as  liabilities and  obligations  arising  under  acts  of  State  were  not enforceable in the municipal courts unless 186 they were recognised by the new sovereign. For the  purpose of  giving  necessary  direction  to  the  Union  and  State executives  as well as to the State and Union  legislatures, the   Constitution  recognised  the  rights   accruing   and liabilities and obligations arising under various Agreements and   Covenants  which  recognition  made.   those   rights, liabilitie and obligations enforceable.  But the Constituent Assembly did not want to open up the Pandora’s box.  Without Art.  363,Art.  362  would have opened the  flood  gates  of litigation.   The Constituent Assembly evidently  wanted  to avoid  that situation.  That appears to have been  the  main reason  for enacting Art. 363.  Evidently there  were  other reasons also for enacting Art. 363.  Some of the Rulers  who had  entered  into Merger Agreements  were  challenging  the validity  of those agreements, even before the draft of  the Constitution  was finalised.  Some of them  were  contending that  the agreements were taken from them  by  intimidation; some  others were contending that there were blanks  in  the agreements  signed by them and those blanks had been  filled in  without  their knowledge and to  their  prejudice.   The merger  process went on hurriedly.  The Constitution  makers could  not have ignored the possibility of future  challenge to  the validity of the Merger Agreements.   Naturally  they would  have  been  anxious to  avoid  challenge  to  various provisions  in  the Constitution which are  directly  linked with the Merger Agreements. As  seen  earlier Art. 363 has two parts.   The  first  part relates to disputes arising out of Agreements and  Covenants etc.   The  jurisdiction of this Court as well as  of  other courts  is  clearly barred in respect  of  disputes  falling within  that part.  Then comes the second part of  Art.  363 which  refers to disputes in respect of any  right  accruing under  or any liability or obligation arising out of any  of the   provisions  of  the  Constitution  relating   to   any agreement,  covenant etc.  We are concerned with  this  part of  Art. 363.  Before a dispute can be held to  come  within the scope of that part, that dispute must be in respect of a right accruing under or liability or obligation arising  out of a Provision of the Constitution and that provision of the Constitution must relate to agreements, Covenants etc. The  principal dispute with which we are concerned in  these cases is whether the President has the power to abolish  all Rulers  under  Art.  366(22).  Quite  plainly  this  dispute cannot be held to be dispute in respect of a right  accruing or a liability or obligation arising under any provision  of the  Constitution.   Herein we are not  concerned  with  any right,  liability  or  obligation.  We  are  concerned  with powers  of the President under Art. 3 66 (22).  What  is  in

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dispute  is  the true scope of the power  of  the  President under Art. 366(22).  That dispute does not fall within  Art. 363. 187 Power is not the same thing as right.  Power is an authority whereas  a right in the context in which it is used in  Art. 363, signifies property.  The fact that the court’s decision about  the  scope of the power of the President  under  Art. 366(22)  may  incidentally bear on certain rights  does  not make  the dispute, a dispute relating to any right  accruing under  any  provision  of the Constitution.   A  dispute  as regards   the   interpretation  of  a   provision   of   the Constitution  is not a dispute within the  contemplation  of the  second  part  of Art. 363 as it is  not  a  dispute  in respect   of  any  right,  liability  or  obligation.    The contention  of the petitioners is that the  impugned  orders are ultra vires the powers of the President, hence null  and void.  Such a dispute does not come within Art. 363. It cannot be said that Art. 366(22) is a provision  relating to Merger Agreements and Covenants.  The word ’relating  to’ is  a word of wide import but in the context in which it  is used  in  Art.  363  it  must  receive  a  narrower  meaning otherwise all rights accruing or liabilities and obligations arising  under  one  of  other  of  the  provisions  of  the Constitution  to the former Rulers of Indian States as  well as  to  their  subjects has to be held to  come  within  the mischief of Art. 363 because they became Indian citizens  as a result of the merger of the Indian States in the  Dominion of  India  in pursuance of Merger  Agreements.   Nothing  so startling  could  have  been  intended  by  the  Constituent Assembly.   If  it  is  otherwise,  the  life,  liberty  and property of that section of our citizens would be under  the mercy of our Government because if they complain against any high   handedness  on  the  part  of  the  Government,   the Government  can  seek  shelter  under  Art.  36.  The   word ’relating’ in Art. 363, in my judgment means "to bring  into relation"  or "establish relation between".  In other  words the provision of the Constitution in question must be linked with  the  Merger  Agreements  or  Covenants  directly   and immediately.   It must have no independent existence.   That is   not  the  position  under  Art.  366(22).   It  is   an independent  provision.   It  has nothing  to  do  with  the Agreements  and  Covenants.  It does not take  any  strength from  the Covenants and Agreements.  The power to  recognise the Rulers is a new power conferred on the President by  the Constitution.  There was no such power under the  Agreements and Covenants.  Between 1947 and 25th of January, 1950 there was no question of recognising the Rulers of Indian  States. In respect of several of the Indian States, the Dominion  of India had no right to decide the question of  successorship. The provision in the Merger Agreements that succession  will be according to law and custom is merely a statement of  the legal position.  The same cannot be considered as a part  of the 13-L744 Sup CI/71 188 Agreement.   The  reference  to  Agreements  and   Covenants through Art. 291 is a convenient drafting device.  Even if all  the  Agreements  and the Covenants  are  abrogated  the provision will stand intact. Mr.  Mohan  Kumaramangalam,  appearing  on  behalf  of   the respondent  contended that Arts. 291, 362 and 363 should  be considered  as  one  group of  Arts.  which  group  together relates  to  Agreements and Covenants; Art. 3  66  (22)  was enacted  to effectuate Arts. 291 and 362; Articles  291  and

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362 are related to Agreements and Covenants; therefore  Art. 366(22)  must also be held to be related to  Agreements  and Covenants.   I  have earlier considered the meaning  of  the word ’relating’ in Art. 363.  Further I have held that  Art. 291  is  not related to Art. 363 as it not linked  with  the Agreements and Covenants; it is an independent provision.  I have  also  held  that the definition  of  "Ruler"  in  Art. 366(22)  is not merely for the purpose of Art. 291 and  Art. 362  but also for the purpose of supplying contents for  the legislative  ,entry  34  of of List I of Sch.   VII  of  the Constitution.   Hence the group relation theory  ingenuously advanced  by  Mr. Mohan Kumaramangalam cannot  be  accepted. Art.  363  speaks  of "any  provision  of  the  Constitution relating" to Agreement and Covenants.  If the contention  of Mr. Mohan Kumaramangalam is analysed, it means that at  Art. 366(22)  is related to the Agreements and Covenants  through Art.  2912 and 362.  In other words that Art. is a  relation of  the relations of the Agreements and Covenants.  That  is the  type  or relationship contemplated by Art.  363.   That article   contemplates  direct  relationship   between   the concerned  articles and the Agreements and  Covenants.   The further  contention  of  Mr. Mohan  Kumaramangalam  that  in finding out whether an article is related to Agreements  and Covenants,  we should look to its origin or genesis, is  not correct.   If it is otherwise it must be held that  all  the articles of the Constitution in so far as hey deal with  the former  Rulers of Indian States and their subjects are  con- cerned  are related to Agreements and Covenants as they  had their origin or genesis in the Agreements and Covenants.  If that is so Art. 363 becomes all pervasive.  We have  earlier noticed the far reaching implications of such conclusion. The petitioners contend that the plea of the respondent that Art. 291 does not confer a legal right on the Rulers to  get privy  purses  cannot  be considered as  raising  a  genuine dispute and that contention is a mere manoeuvre to oust  the jurisdiction  of  this Court and hence the  same  cannot  be considered  as  dispute within Art. 363.  According  to  the petitioner  the  said  plea  of the  respondent  is  a  mere pretence  and not a dispute because dispute in law  means  a triable issue and not an assertion which is ex- 189 facie  untenable.   It  is not necessary  to  examine  these contentions. The  basic issue arising for decision in these cases  is  of far  greater  significance than it appears at  first  sight. The  question whether the Rulers can be derecognised by  the President  is  of secondary importance.  What is  of  utmost importance  for the future of our democracy is  whether  the executive  in  this country can flout the  mandates  of  the Constitution and set at night legislative enactments at  its discretion.   If  it is held that it can then  our  hitherto held  assumption that in this country we are ruled  by  laws and not by men must be given up as erroneous. Before,  proceeding to consider the decisions relied  on  by the  learned  Attorney  General and  Mr.  Kumaramangalam  in support of their contention that the disputes with which  we are concerned in these cases are disputes falling within the ambit  of Art. 363, it is necessary to mention at  the  very outset  that the question whether the orders similar to  the impugned orders are within the powers of the President under Art. 366(22) did never come before these Court for decision. No such orders had been passed by the President in the past. There  was just one derecognition in the past i.e.  that  of the  former  Ruler  of Baroda.  That matter  did,  not  come before  courts.  Hence there was no occasion for this  Court

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or for that matter any court in this country to consider the scope of Art. 366(22).  The observations made by this  Court in  Rajendra Singh’s case (supra) had been considered by  me earlier.  Even the scope of Art. 291 had not directly arisen for consideration in any of the decisions of this Court.  It is  true  that there are a few observations in some  of  the decisions to which I shall presently refer about the  nature of  the right guaranteed under that Art. 291 and the  impact of Art. 363 on that right. Let  me now consider the decisions relied on by the  learned Attorney  General.  The first decision relied on by  him  is State  of  Seraikella v. Union of India  and  anr.  etc.(1). Therein certain States which had acceded to the Dominion  of India  and  which had merged in the Province  of  Bihar  and administered  as part of that Province instituted  suits  in the Federal Court of India ’before the 26th January 1950 for a declaration that various orders under which States  came to  be  administered as part of Bihar and  the  laws  under which  those orders were made were ultra vires and void  and the Province of Bihar had accordingly no authority to  carry on  the  administration of the States.   Those  suits  stood transferred to the Supreme Court of India under Art.  374(2) of the Constitution after the Constitution came ino force. (1)  [1951] S.C.R.474 190 In those suits the principal question that fell for decision was  whether  the  dispute as regards the  validity  of  the merger could be gone into by this Court in view of Art.  363 of the Constitution.  This Court held that as the suits were really   to   enforce  the  plaintiffs’  right   under   the Instruments of accession and the dispute between the parties really  arose  out  of those instruments, in  view  of  Art. 363(1) is court had no jurisdiction to hear the suits.   The principal controversy in that case came squarely, within the ambit of the first part of Art. 363(1).  Hence that decision is not relevant for our present purpose. The next case referred to is Visweshwar Rao v. The State  of Madhya  Pradesh(1).   Therein  the  dispute  was  about  the validity  ,of some of the Provisions of the  Madhya  Pradesh Abolition  of Proprietory Rights (Estates Mahals,  Alienated Lands) Act (1 of 1951).  One of the contentions advanced  on behalf of the petitioner in that case was that by the  terms of  the Merger Agreement, the properties concerned  in  that case  were declared as the, petitioner’s private  properties and  were protected from State legislation by the  guarantee given  under  Art.  363 of the Constitution  and  hence  the impugned  Act was bad as that contravenes the provisions  of that  Art.   The Court rejected that contention  with  these observations :               "It is true that by the covenant of merger the               properties   of  the  petitioner  became   his               private   properties  as  distinguished   from               properties of the State but in respect of them               he  is  in no better position than  any  other               owner  possessing private  property.   Article               362  does  not  prohibit  the  acquisition  of               properties  declared as private properties  by               the covenant of merger and does not  guarantee               their  perpetual  existence.   The   guarantee               contained  in  the  article is  of  a  limited               extent  only.   It assures  that  the,  Rulers               properties    declared   as   their    private               properties  will  not  be  claimed  as   State               properties.   The  guarantee  has  no  greater               scope  than  this.  That  guarantee  has  been

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             fully respected by the impugned statute, as it               treats those properties as their private  pro-               perties  and  seeks to acquire  them  on  that               assumption.   Moreover it seems to me that  in               view of the comprehensive language of  article               363 this issue is not justiciable."               From  this  it is clear that the  decision  in               question  does  not  bear  on  the  points  in               controversy in these cases.               The  learned Attorney-General next  relied  on               the decision in Sri Sudhansu Shekhar Singh Deo               v. The State of Orissa and (1)  [1962] S.C.R. 1020. 191 Anr.(1).   Therein  a  former  Ruler  of  an  Indian   State challenged  the  levy  of  agricultural  income-tax  on  his agricultural   properties  under  the  Orissa   Agricultural Income-Tax Act, 1947 (Orissa Act 24 of 1947).  He  contended that  in view of the guarantees given to him under cls.  (4) and (5) of the merger agreement entered into between him and the  Dominion  of India, no agricultural income-tax  can  be levied   on  the  income  from  his   private   agricultural properties.   That  contention was repelled  by  this  Court holding  that the privileges granted under cls. (4) and  (5) of the Agreements of Merger were his personal privileges  as an  ex-Ruler  and  those privileges did not  extend  to  his private  properties  and  that  the claim  made  by  him  of immunity from taxation relying upon the Agreement of  Merger was  not justiciable.  The ratio of that decision is  of  no assistance in these cases.  But the learned Attorney-General relied  on the observations found at pp. 785 and 786 of  the Report.  Those observations are :               "Even though Art. 362 is not restricted in its               recommendation  to agreements relating to  the               privy  purse  and covers  all  agreements  and               covenants entered into by the Rulers of Indian               States   before   the  commencement   of   the               Constitution  whereby  the  personal   rights,               privileges  and dignities of the Ruler  of  an               Indian  State  were guaranteed,  it  does  not               import any legal obligation enforceable at the               instance  of the erstwhile Ruler of  a  former               Indian State.  If, despite the  recommendation               that due regard shall be had to the  guarantee               or  assurance  given  under  the  covenant  or               agreement,  the Parliament or the  Legislature               of  a State makes laws inconsistent  with  the               personal  rights, privileges and dignities  of               the  Ruler of an Indian State the exercise  of               the legislative authority cannot, relying upon               the  agreement or covenant, be  questioned  in               any court and that is so expressly provided by               Art. 363 of the Constitution." The  only remark in the above observation relevant  for  the purpose  of the present cases is : "Even though Art. 362  is not restricted in its recommendation to agreements  relating to  the  privy  purse" thereby  meaning  that  guarantee  as regards the privy purse also comes within the scope of  Art. 362.   This is a casual remark.  In that case the Court  had no occasion to consider the scope of Art. 291 or Art. 362. The  decision of this Court in (’H.  H. The  Maharana  Sahib Shri Bhagwat Singh Bahadur of Udaipur v. State of  Rajasthan and Ors., referred to by the learned Attorney-General during the (1) [1961] 1, S.C.R. 779

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(1) [1964] 5 S.C.R. 1. 192 course  of his arguments does not in the least bear  on  the point  under consideration.  Therein Shah, J.  speaking  for the Court merely set out the arguments of the parties as  to the scope of Arts. 291, 362 and 363 but declined to go  into them as those Arts had not been relied on in the High Court. The next decision relied on by the learned  Attorney-General is  the decision of this Court in State of Gujarat  v.  Vora Fiddali  Badruddin Mitniberwala(1).  The material  facts  of that  case  were that the Ruler of the, State  of  Sant  had issued  a Tharao dated 12th March, 1948 granting full  right and  authority  to the jagirdars over the  forest  in  their respective villages.  Pursuant to the agreement dated  March 19,  1948  the.  State of Sant merged with the  Dominion  of India.   At the time of the merger, it was expressly  agreed that no order passed or action taken by the Maharana  before the  day of April 1, 1948 would be questioned but after  the merger the Government of Bombay in which province the former State of Sant had merged in consultation with the Government of  India cancelled the Tharao in question holding  that  it was  not  a bona fide grant.  The jagirdars  challenged  the validity  of  that order and in support of their  case  they relied  on  the relevant clauses in  the  Merger  Agreement. This  Court held that the guarantees given under the  Merger Agreements  cannot be relied on by the Municipal  Courts  in view of Art. 363. The  last case relied on by the learned Attorney-General  is Nawab  Usmanali  Khan  v. Sagermal (2 ).   In  that  case  a creditor of a former Ruler sought to attach the privy  purse payable to the Ruler under Art. 291.  The Ruler objected  to the same on the ground that attachment is invalid in view of cl.  (g) to the Proviso of s.60(1), C.P.C,  which  provision says that political pensions are not liable to be  attached. The word "pension" in s.60(1) (g) implies periodical payment of  money  by  the Government to  the  pensioners-see  Nawab Bahadur of Murshidabad v. Karnani Industrial Bank Ltd.  (3). In  Bishambhar Nath v. Nawab Imdad Ali Khan(4), Lord  Fatson observed               "A  pension which the Government of India  has               given  a  guarantee  that it will  pay,  be  a               treaty  obligation  contracted  with   another               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. (1)  [1964] 6, S.C.R. 461 (2)  [1965] 3, S.C.R. 201. (3) [58] 1. A. 215; (4)  [1890] L.A. XVII 18. 193 Relying on these decisions and taking into consideration the nature of the liability in relation to the payment ’of privy purse,  this  Court  held that Privy Purse  is  a  political pension and as such, the same is not liable to be  attached. This,  in  short  is  the ratio of  the  decision.   If  the decision  had said nothing more it would not  have  advanced the  case  of  the respondent.  But in  the  course  of  the judgment   Bachawat  J.  who  spoke  for  the  Court   after summarising Arts. 291, 362 and 363 observed as follows               "On the coming into force of the  Constitution               of  India  the guarantee for  the  payment  of               periodical  sums, as privy purse is  continued

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             by  Art.  291  of  the  Constitution  but  its               essential political character is preserved  by               Art.   363  of  the  Constitution,   and   the               obligation  under  this  guarantee  cannot  be               enforced in any municipal court.  Moreover, if               the President refuses to recognise the  person               by  whom the covenant was entered into as  the               Ruler  of the State, he would not be  entitled               to  the  amount payable as privy  purse  under               Art.  291.   Now, 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  not  under  a  right   legally               enforceable in any municipal court is strictly               a  political  pension within  the  meaning  of               s.60(1) (g) of the Code of Civil Procedure."               But   these  observations  are  obiter.    The               learned judges in that case had no occasion to               consider  nor  did they go into the  scope  of               Art.  291 or Art. 363.  Every  observation  of               this Court is no doubt, entitled to weight but               an obiter, cannot take the place of the ratio.               Judges are not oracles.  In the very nature of               things,  it is not possible to give  the  same               attention to incidental matters as is given to               the actual issues arising for decision.   Fur-               ther  much  depends  on the way  the  case  is               presented to them.               In  the  State of Orissa  v.  Sudhansu  Sekhar               Misra and Ors.(1) dealing with the question as               to  the  importance  to  be  attached  to  the               observations  found in the judgments  of  this               Court. this is what this Court observed               "A  decision is only an authority for what  it               actually decides.  What is of the essence in a               decision   is   its  ratio   and   not   every               observation  found therein nor what  logically               follows from the various observations made  in               it.  On  this  topic this  is  what  Early  of               Halsbury  LC said in Quinn v.  Leathem  (1901)               A.C 495 :                 "Now before discussing the case of Allen  v.               Flood   1898)  A:C.1  and  what  was   decided               therein, there are               (1) [1968] 2, S.C.R. 154.               194               two observations of a general character  which               I  wish to make, and one is to repeat  what  I               have  very  often  said  before;  that   every               judgment  must  be read as applicable  to  the               particular  facts  proved  or  assumed  to  be               proved,   since   the   generality   of    the               expressions  which may be found there are  not               intended  to be expositions of the whole  law,               but  governed and qualified by the  particular               facts  of the case in which  such  expressions               are to be found.  The other is that a case  is               only   an  authority  for  what  it   actually               decides.   I  entirely  deny that  it  can  be               quoted  for  a proposition that  may  seem  to               follow  logically  from it.  Such  a  mode  of               reasoning assumes that the law is  necessarily               a  logical  code, whereas  every  lawyer  must               acknowledge that the law is not always logical

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             at all." It  is  not a protable task to extract a sentence  here  and there from a judgment and to build upon it. In my opinion none of the questions of law arising for deci- sion  excepting that relating to the petitioners’  right  to move this Court under Art. 32 is res Integra. The only question remaining for consideration is whether the petitioners have been able to establish any construction  of their  fundamental rights in order to entitle them  to  move this Court under Art. 32.  This question need not detain  us for  long.  The petitioners have complained that the  rights under  Arts. 14, 19, 21 and 31 have been contravened.  As  I am  satisfied that the rights under Arts. 31 and 19 (1)  (f) have  been  contravened it is not necessary to  examine  the alleged contravention of other rights. I have earlier come to the conclusion that the right to  get the privy purse under Art. 291 is a legal right.  From  that it follows that it is a right enforceable through the courts of  law.  Thai right is undoubtedly a property.  A right  to receive  cash  grants annually has been considered  by  this Court to be a property-see State of M.P. v. Ranojirao  Shide and  Anr(1).  Even if it is considered as a pension  as  the same  is  payable  under law namely Art. 291,  the  same  is property-see Madhaorao Phalke v. State of Madhya Bharat(2). We  have also earlier seen that certain benefits  have  been conferred  on  the Rulers under the Wealth Tax  Act.   As  a result  of  the  impugned orders,  all  those  benefits  are purported to have (1) [1968] 3, S.C.R. 489 (2) (1961) 1, S.C.R. 957 195 been  taken  away.  The denial of those benefits  which  had been   afforded  to  the  Rulers  under  law  is   again   a contravention  of  the  petitioners’  fundamental  right  to property.   It was conceded by the learned Attorney  General that  an  illegal deprivation of any  pecuniary  benefit  to which  a person is entitled under any law is. a  deprivation of his fundamental right.  In view of this concession it  is not necessary to refer to decided cases. For  the  reasons mentioned above, I allow  these  petitions with  costs, quash the impugned orders which means that  the status  quo ante is restored.  The declaration asked for  in relief No. 2 is unnecessary.  There is no need at present to go into the, other reliefs asked for. Ray, J. These are eight petitions.  The petitioners are des- cribed  as  Rulers  of Gwalior,  Udaipur,  Nabha,  Nalagarh, Kutch, Dhrangadhra, Patna and Benaras. On 6 September, 1970 in exercise of the powers vested in the President  under  Article 366(22) of the  Constitution,  the President  directed  that with effect from the date  of  the said order His Highness Maharajdhiraja Madhav Rao Jiwaji Rao Scindia  Bahadur  do cease to be recognised as  a  Ruler  of Gwalior. Similar  orders were made by the President in regard to  the other seven petitioners. All  the petitions are in substance the same.  It will  not, there  fore,  be  necessary to refer to  all  the  petitions separately.  The case of the petitioner in Writ Petition No. 376  of 1970 can be arbitrary, malafide and a fraud  on  the Constitution. The petitioner challenges the aforementioned order  (herein- after referred to as the order) as violative of Articles 14, 19(1) (f) and 31(1) and (2) of the Constitution.  The  order is  also  challenged to be unconstitutional,.  ultra  vires, void,  inoperative,, arbitrary, malafide and a fraud on  the

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Constitution. The grounds for challenge alleged in the petition are these First,  the privy purses have been guaranteed  under  Merger Agreements  and Covenants.  Merger Agreements and  Covenants are  inextricably  linked up with Instrument  of  Accession. There pledge to pay privy purses and the guarantee regarding privileges  are inseparable from accession and merger.   The obligation  to, pay privy purse and the guarantee  regarding privileges  cannot be abolished by an executive order.   The whole  purpose of the order is to deprive the petitioner  of privy  purse and privileges, guaranteed under the  Covenants and  Merger  Agreements and also guaranteed  and  asured  by Articles 291 and 362 of the Constitution.  The whole  object of the order is to override and overrule 196 the  Constitution on the point of Rulers rights,  privileges and  privy  purses after the rejection of  the  Constitution (24th Amendment) Bill by the Rajya Sabha. Secondly,  derecognition  of  all the  Rulers  en  masse  is itself .the clearest possible proof that the whole object is to  abolish the institution of Rulership altogether and  the rights and privileges .attached thereto including the  right to privy purse.  Under-the Merger Agrements and Covenants  a Ruler  is  entitled to privy purse,  rights  and  privileges enjoyed  before 15 August, 1947 and succession to the  gaddi in  accordance with the law and custom of the  family.   The Government of India in discharge of the obligation to ensure the   fulfilment  of  these  rights  has  been   recognising successors  to Rulers and paying privy purses to the  Rulers and  to their successors.  ’The procedure of recognition  of the persons, so entitled by the President for the purpose of Articles  291  and 362 has to be read with  the  contractual obligation  which still survived between the Union of  India and  the Ruler.  Once the President has recognised a  person who  is entitled to receive privy purse and to  be  accorded rights   and  privileges  as  a  Ruler,  there  can  be   no interference with the right to receive privy purse. Thirdly,   there   is  no  substantive  provision   in   the Constitution  .conferring  on  the  President  a  right   to recognise  or  not  to  recognise a  Ruler  or  to  withdraw recognition.   Once  the procedure of recognition  has  been exhausted  the President becomes functus officio and has  no further  authority to withdraw the recognition which he  has accorded.   In  recognising  a Ruler the  President  has  to ,conform  to the fact of a certain person being Ruler or  to the fact of succession in accordance with the position under the  Covenants and Merger Agreements and in accordance  with law  and  custom of the family.  Article 366(22)  imposes  a constitutional  duty  on  the  President  to  recognise   an existing  fact  in  accordance with the  provisions  of  the Covenants  and  Merger Agreements and the President  has  no power or authority independent of such facts.  The President is  bound  by contractual obligations in the  Covenants  and Merger  Agreements  and by the Constitutional  duty  imposed upon  him  to recognise a person entitled to  receive  privy purse.   The order derecognising Ruler en masse  brings  the institution  of  Rulership  to  an end.   The  order  is  in contravention of Articles 291, 362, 366(22) and 53(1). Fourthly, the order violates Article 14, because it  singles out the Rulers for hostile discrimination and deprives them of  their valuable rights to property  without  compensation and violates solemn agreements and the express provisions of the  Constitution.   ’There is deliberate  defiance  of  the Constitution   by   wilful   repudiation   of    contractual obligations against a class of citizens.

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197 Fifthly,  the right to receive privy purse and other  rights constitutes  property within Articles 19 ( 1 ) (f )  and  31 and  the order seeks to deprive the petitioner of his  right to  privy  purse and other rights in  violation  of  Article 19(1)  (f).   The  right to taxfree privy  purse  and  other rights  are properties of the petitioner and the  petitioner is  deprived  of  the  same  without  authority  of  law  in violation of Article 31(1).  The privy purse is in substance and  in reality compensation for the transfer by  Rulers  of inter  alia their properties and it is not competent to  the Government to abolish the right without compensation in  the form of privy purse. Sixthly,  the Rulers, it is alleged, acted on the  faith  of the  undertakings and guarantee given by the  Government  of India  regarding privy purses and preservation of  Rulership and of personal rights and privileges.  The Rulers acted  to their  detriment  by  giving  away  vast  properties.    The Government  is,  therefore,  estopped  by  the  doctrine  of promissory estoppel from refusing to pay the privy purse.  A fiduciary duty is cast on the Government of India to respect and  implement the provisions of the Merger  Agreements  and the Covenants: The Government is bound by its pledged  words to   pay   privy   purse   and   to   recognise   Rulership. Alternatively,  the order leaves the Merger  Agreements  and Covenants  untouched  and the Union is bound  to  pay  privy purse  and to recognise the personal rights  and  privileges and  to  discharge all obligations under the  Covenants  and Merger Agreements and the Constitution. Finally,  the petitioner alleged that Article 363  does  not cover  the  case of a policy to abolish the  institution  of Rulership  and  rights and privileges and  privy  purses  of Rulers.   The  questions whether en masse  derecognition  of Rulers is ultra vires Article and whether the Government  by executive  action can abolish the institution  of  Rulership and  wipe out Articles 291 and 362 by policy  decisions  are said to be outside Article 362. On  these allegations in the petition the  petitioner  seeks three  declarations;  First that the order is  ultra  vires, secondly,  that the petitioner continues to be a  Ruler  and continues to be entitled to privy purse and privileges,  and thirdly, a. writ ’under Article 32 directing the  Government to   pay   privy   purse,  recognise   Rulership   and   pay compensation. The  respondent  denies  that  the  petitioner  is   legally entitled   to  privy  purse  and  privileges  or  that   the Government  is  bound  to pay privy  purse  and  accord  the privileges by reason of the Covenants or Merger  Agreements. The  Government  denies that the petitioner is  entitled  to privy purse or to privileges or that the Government is bound to pay privy purse or accord privileges under Arti- 198 cles  291 and 362 respectively.  The Government denies  that the  alleged  obligation to pay privy purse or  the  alleged guarantee  regarding  privileges  cannot  be  abolished   by executive  order.  The Government denies that  independently of Article 366(22) the petitioner is entitled to privy purse or to privileges.  The Government denies that the  President is  bound by contractual obligations or constitutional  duty to  recognise a person to be entitled to privy  purse.   The Government denies that the Government has no right to refuse to pay privy purse or to derecognise Rulers.  The Government denies  that the order violates Articles 19 and 31  or  that the   petitioner  has  been  deprived  of  privy  purse   or privileges  because of the grounds alleged.  The  Government

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denies  that  Article  366(22)  imposes  any  duty  on   the President to recognise any existing fact in accordance  with the Covenants or that any existing Ruler is an existing fact for recognition. The Government denies that the order is ultra vires or there is  any institution of Rulership.  Finally,  the  Government denies  that  derecognition is outside Article 363  or  that questions  of abolition of Rulership or wiping out  Articles 291 and 362 are outside Article 363. The  Attorney  General  raised  the  plea  of  the  bar   of jurisdiction  of  this  Court  under  Article  363  at   the threshold.  Article 363 is as follows :               "363.  (1)  Notwithstanding anything  in  this               Constitution but subject to the provisions  of               Article 143, neither the Supreme Court nor any               other  court  shall have jurisdiction  in  any               dispute  arising  out of any  provision  of  a               treaty agreement, covenant, engagement,  sanad               or other similar instrument which was  entered               into  or executed before the  commencement  of               this  Constitution by any Ruler of  an  Indian               State  and  to  which the  Government  of  the               Dominion  of  India or any  of  its  predessor               Governments  was a party and which has or  has               been   continued  in  operation   after   such               commencement  or in any dispute in respect  of               any  right accruing under or any liability  or               obligation   arising   out  of  any   of   the               provisions  of this Constitution  relating  to               any   such   treaty,,   agreement,   covenant,               engagement, sanad or other similar instrument.               (2)   In this Article-               (a)   "Indian   State  means   any   territory               recognised  before  the commencement  of  this               Constitution by His Majesty or the  Government               of  the  Dominion  of India as  being  such  a               State; and               199               (b)   "Ruler"  includes the Prince,  Chief  or               other    person   recognised    before    such               commencement by His Majesty or the  Government               of  the Dominion of India as the Ruler of  any               Indian State". The first bar is in any dispute arising out of any provision of  a  treaty, agreement, covenant entered into  before  the commencement of the Constitution and which has continued  in operation after such commencement.  The second bar is in any dispute  in  respect  of any right  accruing  under  or  any liability or obligation arising out of any provision of  the Constitution  relating to any treaty,  agreement,  covenant, engagement, sanad and other similar instruments. It  is,  therefore,  vitally necessary  to  ascertain  first whether  there  are  disputes; secondly, as  to  what  those disputes are; and, thirdly, whether the disputes fall within Article 363. The  reason  why I referred to the rival allegations  is  to indicate   the  nature  and  character  of  disputes.    Mr. Palkhivala on behalf of the petitioner contended that  there was  no  dispute as to privy purse or to  recognition  of  a Ruler  and  the only contention was that the  order  of  the President  was  a nullity.  It is indisputable that  no  one comes  to a court of law unless disputes have arisen.   When the  petitioner alleges that the order is a nullity and  the Government alleges that the order is valid a dispute  arises at once.

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Mr. Palkhivala contended that the first limb of Article  363 was  clearly  not  applicable because there  is  no  dispute arising out of any Covenant or Merger Agreement and the  bar under  the second limb was not attracted for  four  reasons. First,  rights,  liabilities and obligations are not  to  be confused   with   powers  or  jurisdiction  or   limits   of legislative  or  executive  powers  or  jurisdiction.    Any executive or legislative action which goes beyond the  scope of  Article 366(22) or violates Article 291 or  Article  362 would  raise  a question as to the limits  of  executive  or legislative  competence  and it cannot be said  to  raise  a dispute  as to any right, liability or obligation.   It  was emphasised that the only dispute is whether the  President’s order  is a nullity and it is a dispute as to the limits  of the President’s jurisdiction and not a dispute in respect of any  right, liability or obligation.  Secondly, it was  said that Articles 291 and 362 are mandatory Articles and if  the Government  chose to raise disputes about those Articles  it would amount to saying that the Government was disputing the very   obligation   enacted  by  those   Articles   in   the Constitution.  Dispute in Article 363 was said not to  cover a  dispute the raising of which was expressly prohibited  by the  other  provisions of the  Constitution.   Thirdly,  any executive action in violation of Arti- 200 cles  291 and 362 or beyond the ambit of Article  366  (22) would  be  a  violation  of  Articles  53  and  73  of   the Constitution  and the latter Articles did not at all  relate to Covenants or Merger Agreements.  The refusal to pay privy purse  was  said to be in viola 4 of Articles 112,  113  and 114.   Again  it  was  said that if  a  law  was  passed  in violation  of  Articles  291 or Article 362 it  would  be  a breach  of  Articles  245 and 246 which  Articles  were  not related   to   Covenants  or  Merger  Agreements   at   all. Fourthly,, an executive action which is ultra vires or  mala fide is a nullity and the bar of jurisdiction under  Article 363  would  apply  only where the action is  bona  fide  and cannot apply where the order is ultra vires and nullity. Article  363 bars the jurisdiction of all courts in  respect of  any  dispute covered by the Article.   It  is  seriously challenged and controverted by the Government that  Articles 291  and 362 have any mandatory character as alleged by  the petitioner.  It is disputed that the order is a nullity.  It is. equally disputed that there cannot be any dispute as  to rights  or  liabilities or obligations  under  the  Articles aforesaid.   If both parties say that an order is bona  fide there can be no dispute.  It is only when one party  alleges the  order to be a nullity and the other party  affirms  the order  to  be valid that parties will have a  dispute.   The petitioner’s contentions bristle with disputes which in  the ultimate analysis resolve into keenly debated disputes as to rights  of  Rulership and Privy Purse.  The  dispute  as  to jurisdiction  of the President under Article 366(22) is  not in  vacuo  but is a dispute as to rights of  recognition  of Ruler  for  the  purposes  of payment  of  Privy  Purse  and enjoyment   of  rights  and  privileges.    Mr.   Palkhivala submitted that he did not want any relief as to Privy  Purse now and if the petitioner succeeded in getting a declaration that  the order is nullity and if the Government  thereafter did not pay Privy Purse the petitioner would then apply  for that relief.  This position indicates beyond any doubt  that the  heart of the matter is dispute as to Privy Purse  which is stopped by the Order of the President.  The order is  for purposes  of  payment of Privy Purse and that  is  what  the petitioner is seeking to enforce.

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In order to appreciate the true scope and content of Article 363  it is necessary to find out as to why this Article  and Articles   291,  362,  366(22)  (hereinafter   referred   to collectively  as  the allied Articles) found  place  in  the Constitution.  These allied Articles deal with privy purses, princely  privileges  guaranteed  under  the  Covenants  and Merger  Agreements entered into by Rulers of  Indian  States and  recognition  of Rulers by the President  under  Article 366(22).  The roots of these Articles lie deep in the  past. Therefore, the history and chronicle of events will have  to be told.  The transition from the British Rule to the Indian 201 Independence  and the establishment of the Republic  of  our country   is  a  great  constitutional   development.    The Constitution  which  was evolved  represented  the  national ethos  forged  by the aims and aspirations  of  the,  people throughout  the length and breadth of our country.  A  great problem   which   awaited  solution  on  the  eve   of   our independence  was the relation between our country  and  the Indian States.  The British Cabinet Mission came to India in the month of March, 1946.  The Mission came to bring about a change in the British policy towards India.  Imperialism was crumbling  after the Second World War.  The Cabinet  Mission in  no uncertain terms said that when India was going to  be an  independent country it was not only necessary  but  also desirable  that the Indian States should combine  with  free India for security, stability and solidarity.  The Rulers of Indian States also realised the importance of such a measure in an advised age when the leaders of our country  impressed upon  the Rulers the wisdom. of such a course of  action  to avert  the upheaval and upsurge of the people in the  Indian States which were also tottering with the decline of British imperialism.   It  is in this background  that  the  Cabinet Mission  declared  in  May, 1946  that  paramountcy  of  the British Crown which provided the basis of relations  between British India and the Rulers of Indian States could  neither be retained by the British Crown nor transferred to the  new Government  of India.  The paramount power in British  India was  derived from the Royal Prerogative.  The  rights  which the paramount power claimed in exercise of the functions  of the Crown in relation to the State covered both external and internal  matters in the States.  The Indian States  had  no international status.  The paramount power under the British Regime  recognised  succession  to  the  gaddi  and  settled disputes as to succession and imposed the duty of loyalty to the  Crown.   The  Indian  States  Committee  in  1927   had expressed the view that ’paramountcy must remain  paramount, it must fulfil its obligations, defining or adapting  itself according  to the shifting necessities of the time  and  the progressive  development  of  the  States".   This  was  the essence  of  the doctrine of paramountcy in  British  India. Paramountcy  could  not be defined.  It was  an  imperialist imposition on the Rulers of Indian States. The  Cabinet Mission issued a Memorandum dated 12 May,  1946 and  announced a plan on 16 May, 1946 later on known as  the Cabinet Mission Plan.  In the memorandum the Cabinet Mission affirmed  that the rights of the Indian States which  flowed from their relations with the British Crown would no  longer exist when the British would leave India and that the rights surrendered  by  the  States to the  paramount  power  would revert  to  these States.  The Cabinet Mission  Plan  was  a statement embodying suggestions 202 and  recommendation towards the speedy setting up of  a  new Constitution  for  India.   Referring  to  the  States,  the

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Cabinet  Mission Plan said that with the attainment  of  the Independence  of  our country, the  relationship  which  had existed  between the States and the British Crown  would  no longer  be  possible  and  paramountcy  ,could  neither   be retained   by  the  British  nor  transferred  to  the   new Government.   The  Plan  further said that  the  Rulers  had given   assurances that they were ready and willing  to  co- operate  in the new development of India.  On 3  June,  1947 the  British Government superseded the Cabinet Mission  Plan in  so  far as it referred to the States and made  it  clear that  the decisions announced related only to British  India and  the British policy towards Indian States  contained  in the  Cabinet  Mission memorandum of 12  May,  1946  remained unchanged. As a prelude to the transfer of power from the British Crown to our country the Government of India decided to set up  a Department  called  the States Department to  conduct  their relations with the States in matters of common concern.   On 5  July,  1947  Sardar  Patel  defined  the  policy  of  the Government  of  India by stating that "the people  of  India were  knit  together by bonds of blood and feeling  no  less than of self-interest" and "no impassable barriers could  be set  up between us" and he said that the alternative to  co- operation was anarchy and chaos.  There was special  meeting of  the  Rulers  on  25 July,  1947.   The  then  Crown  re- presentative  Lord Mountbatten in the course of his  address to  the  Rulers advised them to accede  to  the  appropriate Dominion  in regard to three subjects of  Defence,  External Affairs  and  Communications  and assured  them  that  their accession  on  these  subjects would  involve  no  financial liability   and   in  other  matters  there  would   be   no encroachment  on their internal sovereignty.  Barring  three States  the other Indian States acceded to the  Dominion  of India by 15 August, 1947. The  Indian Independence Act was to come into  existence  on ’15 August, 1947.  Section 7 of the Indian Independence Act, 1947 provided that with the lapse of suzerainty of the Crown over  Indian States all treaties and agreements between  the Crown  and  the  Rulers  of  Indian  States,  all  functions exercisable  by the Crown with respect to India in  States, all obligations of the Crown towards Indian States or Rulers thereof  and all powers, rights, authority  or  jurisdiction exercisable  by the Crown on that date in or in relation  to Indian  States  by  treaty,  grant,  usage,  suzerainty   or otherwise would also lapse.  The proviso to section 7 of the Indian  Independence Act, 1947 was that notwithstanding  the lapse of suzerainty and lapse of treaties, effect shall,  as nearly as might ’be, continued to be given to the provisions of any such agreement 203 referred  to  in section 7 (b) of the Act which  related  to customs.  transit, communications, posts and  telegraphs  or other  like  matters until the provisions in  question  were denounced  by  the  Ruler  of the Indian  State  or  by  the Dominion  or  Province  or  were  superseded  by  subsequent agreements. The  Instruments  of  Accession executed by  the  Rulers  of Indian States declared accession to the Dominion of India on three   subjects,  viz.,  Defence,  External   Affairs   and Communications.  In the Instruments of Accession the  Rulers provided that nothing in the instrument wag to be deemed  to commit  the  Ruler in any way to acceptance  of  any  future Constitution  of India or to fetter a Ruler’s discretion  to enter  into arrangements with the Government of India  under any  such future Constitution.  The Instrument concluded  by

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stating  that  nothing in the Instrument  would  affect  the continuance of the Ruler’s sovereignty in and over the State or save as provided by or under the Instrument, the exercise of any powers, authority and rights then enjoyed by him as a Ruler of the State or the validity of any law then in  force in his State. The  Instrument  of Accession was followed  by  Stand  Still Agreement.  The Stand Still Agreement between the Ruler  and the  Dominion  of India provided that until  new  agreements were made all agreements and administrative arrangements  as to matters of common concern then existing between the Crown and  the  Indian  States  should, in  so  far  as  might  be appropriate, continue as between the Dominion of India or as the  case might be, the part thereof, and the State.   In  a Schedule  were  enumerated  the various  matters  of  common concern.   The  important  matters  were,  inter-alia,   Air communications,  Arms  and equipment, Currency  and  coinage Customs,    Indian   States   Forces,   External    Affairs, Extradition,  Import  and  Export  Control,  Irrigation  and Electric  Power, Motor vehicles, National  Highways,  Posts, Telegraphs  and Telephones, Railways, Salt, Central  Excises and ’Wireless. The pattern of integration of Indian States was not  uniform in  all  cases.  There were 562 Indian  States  whereof  216 merged  in  Provinces,  61  were  taken  over  as  centrally administered areas and 275 integrated in different Unions of States.   The  Merger Agreements were entered  into  by  the Rulers  with  the  Dominion of  India.   The  two  important clauses in the Merger Agreements were one whereby the Ruler, was to be entitled to receive from the revenues of the State annually for his privy purse the sum mentioned therein  free of  taxes  and  the other whereby  the  Dominion  Government guaranteed  succession  according to law and custom  to  the gaddi  of the State and to the Ruler’s personal rights,  14- L744supCI/71 204 privileges,,  dignities  and titles.   These  two  principal clauses  are  to be found in all Merger  Agreements.   There were  differences in the Merger Agreements as to the  amount of  privy  purse  and  in some cases as  to  the  rights  of successors  to  Rulers  with regard to  privy  purses.   The Rulers of Centrally merged States also entered into  similar agreements  with  the Dominion of India.   Those  agreements also  had two similar principal clauses for privy purse  the sum  mentioned  free  of  taxes  and  guaranteed  succession according to law and custom to the gaddi of the State and to the  Ruler’s  personal  rights,  privileges,  dignities  and titles.  The third type of integration was the formation  of a  Union of States whereby certain States described  as  the Covenanting  States  entered-into a Union of States  with  a common   executive,   legislative  and   judiciary.    These Covenants  provided  for  a  Council  of  Rulers  with   the Rajpramukh as the President of the Council.  These Covenants also had similar provisions with regard to privy purses  and succession.   The Ruler of each Covenanting State was to  be entitled to receive annually from the revenues of the United State for his privy purse, the amount mentioned free of  all taxes.   The succession according to law and custom  to  the gaddi of each Covenanting State and to the personal  rights, privileges,   dignities  and  titles  to  the   Rulers   was guaranteed.   The  Government  of  India  concurred  in  the Covenants  and guaranteed all the provisions.  The  Covenant for the United State of Madhya Bharat came into existence in the  month of April, 1948.  The other Unions also came  into existence  near about the same time.  The Merger  Agreements

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came into existence near about the months of April and  May, 1948. In  the month of September, 1948 the Rulers  of  Covenanting States executed revised Instruments of Accession, and  these were  signed by the Rajpramukhs of the different  Unions  of States.   These  Unions accepted all matters  enumerated  in List  I  and  List  III  of  the  Seventh  Schedule  of  the Government of India Act, 1935 as matters in respect of which the  Dominion Legislature might make laws for the  Union  of States  other than items relating to any tax or duty in  the territories of the United State.  These Revised  Instruments of Accession were accepted by the Governor-General on behalf of  the Dominion of India.  In the month of  November,  1948 the   Unions   of  States  by   their   Rajpramukhs   issued proclamations accepting the Constitution of India. The  Government of India Act, 1935 was amended in  the  year 1947  to  effect  necessary changes on the  passing  of  the Indian  Independence  Act, 1947.  Sections 5 and  6  of  the Government  of India Act, 1935 as amended in  1947  provided first for the accession of Indian States to the Dominion and secondly  that  an Indian State was to ’be  deemed  to  have acceded  to the Dominion if the  Governor-General  signified his acceptance of an instrument of 205 accession  making  a  declaration  in  terms  of  section  6 thereof.   Accession was to be subject to the terms  of  the instrument.   It has already been noticed earlier  that  all Rulers  of Indian States executed Instruments  of  Accession but some Indian States thereafter merged with the Governors’ Provinces  and some were centrally administered areas  after merger and then formed Unions of States. It should be noticed that the Government India Act, 1935 did not  provide for any Merger Agreement.  These Merger  Agree- ments  in  the  case of Provincially  merged  and  Centrally merged  States  did not have any legal  basis  and  sanction under  the  Government  of  India  Act,  1935.   The   Extra Provincial  Jurisdiction  Act ’was therefore passed  in  the year 1947 giving power to the Central Government to exercise extra provincial jurisdiction over a Provincially merged  or a  Centrally merged State only if the Centre had by  treaty, agreement,   acquired  full  and  exclusive  authority   and jurisdiction and power for and in relation to the governance of  the  State.   The administration of  the  merged  Indian States  could  not be done either under  the  Government  of India  Act, 1935 or the Instrument of Accession.  The  Extra Provincial Jurisdiction Act, 1947 was passed for  exercising powers  of  administration  and  legislation  in  regard  to provincially merged and centrally merged States.  The  Extra Provincial  Jurisdiction  Act was really a  half  way  house between  complete separateness and full integration.  A  law passed  by  the Dominion Parliament  did  not  automatically apply to the merged States but had to be made applicable  by a notification under the Extra Provincial Jurisdiction  Act, 1947.   That is why sections 290A and 290B were inserted  by the  Government  of India Act Amendment Act, 1949  into  the Government  of India Act, 1935 for effecting integration  of merged States. Section  290A of the Government of India Act, 1935  provided for  administration  of  certain Acceding  States  as  Chief Commissioners’ Provinces or as part of a Governor’s or Chief Commissioner’s   Province.    Section  290B   provided   for administration   of  areas  included  within  a   Governor’s Province  or a Chief Commissioner’s Province by an  Acceding State.   Under  the  said  section  290A  there  came   into existence  the States Merger (Governors’  Provinces)  Order,

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1949 issued on 27 July, 1949.  This order was applied to the provincially merged States with effect from 1 August,  1949. Under  the States Merger (Governors’ Provinces) Order,  1949 the  provincially merged States were to, be administered  in all  respects  as  if  they formed  part  of  the  absorbing Provinces and all laws including orders made under the Extra Provincial Jurisdiction Act, 1947 were to continue in  force until repealed or modified.  Under the States Merger  Order, 1949 206 provision  was made for representation of the merged  States in   the  Legislature  of  the  absorbing   Province,,   the apportionment  of  assets  and liabilities  as  between  the Centre  and the Provinces and the institution of  suits  and other proceedings against the Government and the continuance of  pending  proceedings.   A similar  order  known  as  the States’  Merger (Chief Commissioners’ Provinces) Order  1949 was  made  applicable to the centrally  merged  States  with effect  from 1 August, 1949.  The provisions of the  States’ Merger  (Chief  Commissioners’ Provinces) Order,  1949  were simil ar to the States Merger (Governors’ Provinces)  Order, 1949.  With  the  issue of  the  States  Merger  (Government Provinces)   and   ’States  Merger   (Chief   Commissioners’ Provinces)  Orders,  1949 the position of  the  provincially merged  States became to all intents and purposes, the  same as that of the provinces.  Similar progress was also made in the  direction of improving the administrative machinery  of the  Chief Commissioner’s Provinces which  :assimilated  the centrally merged States. Mr.  Palkhivala on behalf of the petitioner  contended  that the  developments  and integration of Indian States  on  the basis of the Instruments of Accession and the Covenants  and Merger  Agreements  were  constitutional  developments   and provided  constitutional obligations.  The Attorney  General on  the  other  hand  rightly  contended  that  the   entire relationship  of the Dominion of India vis-a-vis the  Indian States   was  in  the-domain  of  Acts  of  State  and   the Instruments,  Merger Agreements and Covenants did  not  have any constitutional sanction and obligation and were  totally unenforceable  in  municipal courts.  The British  Crown  as Sovereign  State  dealt with the Indian  States  and  either conquered  or annexed their territories or Rulers  of  these States  ceded  their territors or some Rulers  entered  into alliances  with  the  British ,Crown.  Such  action  of  the British Crown was held by long series ,of decisions to be an Act  of State and treaties and stipulations arising  out  of Acts  of  State could not be enforced in  municipal  courts. This Court has in several decisions held that Covenants  and Merger  Agreements with the Indian States are Acts of  State and   not  enforceable  under  municipal  law.  lsee   State of.Seraikella  v.Union of India & Anr.(1) Virendra  Singh  & Ors. v. The State of Uttar Pradesh (2 )  M/s.  Dalmia  Dadri Cement Co. Ltd. v. ’The Commissioner of Income-tax (3) , The State of Saurashtra v. Memon Haji Ismail Haji (4), State  of Gujarat v. Vora Fiddali Badruddin Mithibarwala(5) and  Nawab Usmanali Khan v. Sagar. mal(61).      (1) [1951] S.C.R. 474.   (2) [1955] 1 S.C.R. 415.      (3) [1959] S.C.R. 729.   (4) [1960] 1 S.C.R. 537.      (5) [1964] 6 S.C.R. 416. (6) [1965] 3 S.C.R. 201.                             207 Mr.Palkhivala  contended  that on the  accession  of  Indian States  there could be no Act of State between the  Dominion of  India  and the Rulers who acceded to  the  Dominion  and thereafter between the Republic of India and the Rulers  who were  citizens.   This argument is  also  fallacious.   This

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Court  in  the same case, State of Gujarat v.  Vora  Fiddali Badruddin  Mithibarwala(1) "interpreted the  integration  of Indian States with the Dominion of India as an Act of  State and has applied the law relating to an Act of State as  laid down   by   the   Privy  Council  in  a   long   series   of cases. .......... The Act of State comes to an end only when the  new sovereign recognises either expressly or  impliedly the rights of the: alliens......... This Court further  said "we are not concerned with the succession of India from  the British Crown but with State: succession between Sant  State and  India  and  there was no  second  succession  in  1950. Whatever  had  happened had already happened in  1948,  when Sant  State merged with the Dominion of India.  The  Act  of State which began in 1948 could continue uninterrupted  even beyond 1950 and it did not lapse or get replaced by  another Act of State".  In State of Gujarat v. Vohra Fiddali(1)  the citizen  claimed right on the basis of a Tharao  granted  by the Ruler before the merger.  Apart from the fact. that  the Government  of  Bombay cancelled the right this  Court  held that  the  right  granted by the Ruler  was  not  recognised before  1950  and  the Constitution gave  support  to  those rights which were extant on 26 January 1950.  Fiddali failed on  both the grounds of recognition and existing  law.   The Act of State is illustrated by the making of peace and  war, the annexation or cession of territory, the recognition of a new State or new Government of an old State.  Such acts have been held not to form the basis of action because they  form the  subject of political action in an Act of  State.   ’The sanction  of an Act of State is political to  all  sovereign powers  and  that  is why  municipal  courts  accepted  that position. It is in this background that the Attorney General described Article  363 as embodying the concept of  paramountcy  being recreated   in  the  form  of  a  constitutional   provision excluding  interference  by Courts in disputes  relating  to Instruments of accession,.  Covenants and Merger Agreements. The  Attorney  General  did not submit that  there  was  any paramountcy  between the Republic and its citizens nor  that there  was  any doctrine of paramountcy  subsisting  in  our country  after 1950 or that it survived as a  constitutional provision.  Article 363 and the other allied Articles really reflect  what the makers of the Constitution picked up  from the  historical past and inserted in the Constitution.   The Constitution  provided  for  recognition of  Rulers  by  the President.   This recognition was necessary because  without it the Rulers could not be paid privy purses or enjoy  their rights and privileges. (1)  [1964] 6 S.C.R. 416. 208 These  four  Articles  in  the  Constitution  appear  to  be slightly  unrealistic  or  anachronistic  in  a   Republican Constitution  as it deals with citizens and the  sovereignty of  the people being reposed in the Republic.  The  founding fathers inserted these four allied Articles as rich hangings in a homely house.  The real basis for Article 363 was  that when the Constitution recognised the ,guarantee  of  privy purses and succession to the gaddi in the Merger  Agreements and  Covenants  it was appreciated that if  any  dispute  in regard to such agreements or covenants or any dispute as  to any  right accruing under or any obligation arising  out  of any   pro-vision  of  the  Constitution  relating  to   such covenants  or  agreements were allowed to be brought  in  a court  of  law,  the entire political  relationship  of  the Dominion of India with the Indian States in an aegis of  Act of  State might be upset and upturned by such litigation  in

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municipal courts and there would be room for regret on  many courts.  If Article 363 were not inserted litigations  would have  gone  on  endlessly  as some  of  the,  Orissa  Rulers commenced  in  the State of Seraikella(1) case to  undo  the Orissa merger agreements. The Constitution contemplated political power of the  Presi- dent   to  recognise  Rulers.   If  people  or   disgruntled contenders  for  Rulership  were  allowed  to  litigate   by challenging either the recognition or by preferring a  claim of   recognition,  the  courts  would  not  be  capable   of adjudicating  these  disputes  because  the  character   and content  of, the President’s power of recognition of  Rulers is  political  and  is not limited by the  personal  law  of succession.  Again, if the President withdrew recognition of a  Ruler and the latter came to a court of law it  would  be equally  impossible for .courts to decide in an  area  which was  consigned  to  the  President  as  an  inheritance   of political  power  from  the  domain of  Acts  of  State  and privileges  of Paramountcy.  That is why Article 363  really embodied the principles of Acts of State which regulated and guided  the  rights and obligations under the  covenants  or merger   agreements   by  incorporating  the   doctrine   of unenforceability  of covenants or merger  agreements  coming into existence as Acts of State. The  other reason for insertion of Article 363 was that  the rights   accruing  under  or  obligations  arising  out   of provisions  of  the Constitution relating  to  covenants  or merger  agreements  were imperfect rights.  A  question  was posed  that  if there were rights as  to  succession,  privy purse and privileges there should be a remedy.  In the first place,   there  are  no  legal  rights  to  recognition   of Rulership,  payment of privy purse and enjoyment  of  rights and  privileges.  Prior to the Constitution, the  Rulers  of Indian  States  could  not start  proceedings  in  municipal courts  to enforce agreements or obligations arising out  of covenants or merger (1)  [1951] S.C.R. 474. 209 agreements   because  such  rights  and   obligations   were unenforceable on the ground of dealings under Acts of State. The  Constitution  gave  recognition  to  guarantees   under covenants and agreements by the allied Articles 291, 363 and 366(22).  The Attorney General characterised the payment  of privy  purse,  enjoyment of rights and  privileges  and  the recognition   of   Rulership   as   imperfect   rights   and obligations.   Whatever  rights and obligations  are  to  be found in the merger agreements and covenants were recognised by  the  Constitution  in relation to  those  covenants  and agreements.    But   the  Constitution  made   such   rights unenforceable  in a Court of law.  That is why these  rights and  obligations are called imperfect rights  and  imperfect obligations.  Examples can be found of such imperfect  legal rights when claims are barred by lapse of time or claims are unenforceable  because  of  lack  of  registration.    These imperfect rights and obligations are described in Salmond on Jurisprudence,  12 Ed. at pages 233-234 to be exceptions  to the maxim ubi jus ubi remedium because "the customary  union between  the  rights and the rights of action has  been  for some   special  reasons  severed"  Salmond   warns   against confusing obligatriness with enforceability. It is  "because of unenforceability" that "these rights are sometimes termed imperfect".    Take  for instance an ordinary contract of  a merchant with the   Government.  If the contract is  not  in compliance with Article 299   it   is   unenforceable.   The merchant has a mere imperfect right.    "The        ordinary

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imperfect  right is unenforceable because some rule  of  law declares it to be so. One’s rights against the State are un- enforceable,  not in this legal sense but in the sense  that the  strength of the law is none other than the strength  of the  State  and cannot be turned or used against  the  State whose  strength  it is". Imperfect rights are not  based  on morality. Many rights are     wrecked   on   the   rock   of unenforceability. Act of indemnity is one illustration. Duty is legal, when sanction is attached  to its breach. Sanction means    the   appointed   consequences   of    disobedience Sanctionless   duties  are  imperfect  obligations.   Really speaking  imperfect rights and obligations are what  authors of Jurisprudence describe as no claim in the jural opposites of  claim  and no claim". A statute barred  debt  cannot  be recovered in a court of law but    if  for some  reason  the debtor pays it he cannot later sue to recover     it.    The creditor  had no liability but only liberty to pay.  Liberty or  privilege  begins where duty ends and no  right  exists. These  imperfect  rights  are thus in the  category  of  "no claim" because of lack of legal sanction for enforcement  by the bar of unenforceability laid down in the Constitution. In  our  Constitution  Article 363 is  a  positive  Rule  of unenforceability  of  certain rights  and  obligations.  The Constitution is     supreme  and  the provisions  cannot  be circumvented. This Court held in the Seraikella case(1) that Article 363 is a bar in any (1)  [1951] S.C.R. 474. 210 dispute  relating  to covenants and merger  agreements.   In State  of Gujarat v. Vahra Fiddali(1) this Court  held  that Article 363 precluded the municipal courts from  considering and  adjudicating upon any right under the Merger  Agreement and guarantees were matters for the political department  of the  State  and were thus outside the jurisdiction  of  this Court. Again,  in Usman Ali Khan;s(2) case, this Court  held  ’that the privy purse was a political pension and the payment  was in  relation  to  covenants  and  Merger  Agreements,   and, therefore,  Article 363 was a bar. in a recent  decision  of this Court in Kunwar Shri Vir Rajendra Singh v. The Union of India’s  OrS. (3) it has been held that the  recognition  of rulership by the President is not an indicia of property but it  entitles  the  Rulers to the enjoyment  of  Privy  Purse contemplated  in  Article  291  and  the  personal   rights, privileges  and  dignities mentioned in Article 362  of  the Constitution.   It  was also held that  the  recognition  of rulership  by the President was an executive  and  political power  and Article 363 constitutes a bar to interference  by courts  in  a dispute arising by reason  of  recognition  of rulership. Mr.  Palkhivala submitted that there was no political  power of  the President who had only executive power.   The  words "political power" denote power belonging to the State,,  its government  and  policy.   The  Executive  power  has the political  facet in many cases.  To illustrate the  exercise of  rights,  authority  and jurisdiction by  virtue  of  any treaty or agreement (Article 73); Foreign Affairs (Entry  10 in  List I; of the Seventh Schedule) Entering into  treaties and  agreements with foreign countries and  implementing  of treaties,  agreements and conventions in  foreign  countries (Entry 14 in List I of the Seventh Schedule); War and  Peace (Entry  15  in List I of thE Seventh Schedule)  and  Foreign jurisdiction  (Entry 16 in List I of the Seventh  Schedule): The  power of recognition of Rulership is political  because it  is exercised by the President in relation to  Prince  or

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Chief  by whom any Covenant or Merger Agreement was  entered into  and  the necessity for recognition  arises  from  the Covenants  and Merger Agreements.  It is a  political  power because  it is not limited only to the law of succession  or ’custom.  The reasons of State Policy will enter the  field. It is also a political power because it is not a  compulsive power.  If the scope of the power permits the  President  to recognise some  one  who is not entitled by law  and  custom then law and   custom  does  not control it.   By  political power  is  meant  that the  consideration  which  moves  the President  is  a  matter on which the  Court  will  find  no standard  for  resolving,  it  judicially.   "There  is   no judicial   process   to  adjudicate  upon   such   political consideration". (1) [1964] 6 S.C.R. 416. (2) [1965] 3 S.C.R. 201.  (3) [1970] 2 S.C.R. 631. 211 Article   363   is   a  non-obstante  clause.    It   is   a constitutional mandate.  The prefatory words in Article, 363 "notwithstanding  anything in the Constitution" exclude  all other provisions of the Constitution from being attracted in disputes  which  fall within Article 363.  There  have  been decisions  of  this  Court  on  the  meaning  of  the  words "notwithstanding anything in this Constitution" occurring in Article   363  and  in  Article  329.   In  the   State   of Seraikella(1)   case  this  Court  held  that  Article   363 overrides  all  provisions  of the  Constitution.   In  N.P. Ponnuswami  v. Returning Officer.  Namakal  Constitutency  & Ors.(2)   Article  329  was  construed  to  mean  that   the jurisdiction  of  the  High  Court  under  Article  226   to interfere in regard to rejection of a nomination paper could not  be  challenged  by a writ of certiorari  to  quash  the proceedings.   This Court, observed the  difference  between the  words "subject to the provisions of this  Constitution" occurring  in Article 328 and "notwithstanding  anything  in this  Constitution" occurring in Article 329 and  held  that the words in Article 328 could not exclude the  jurisdiction of the High Court.  The effect of a non-obstante clause  was also considered by this Court in Aswini Kumar Ghosh and Anr. v.  Arabind Bose and Anr.(3). In that case section 2 of  the Supreme Court Advocates Act, 1 provided that notwithstanding anything  contained in the Bar Councils Act, 1926 or in  any other  law  regulating the conditions, subject  to  which  a person not entered in the roll of Advocates, of a High Court might  be  permitted to practise in that  High  Court  every Advocate of the High Court shall be entitled as of right  to practise in any High Court whether or not he is an  Advocate of’  that High Court.  The petitioner in that case  insisted on the right to practise as an Advocate in the High Court at Calcutta  by virtue of his being an Advocate of the  Supreme Court.  He made an application under Article 226.  The  High Court  of Calcutta rejected the application.  There  was  an appeal  as well as a writ petition under Article  32.   This Court  observed  that  the  High  Court  had  not  correctly approached  the construction of section 2 by enquiring  what the provisions were which that section sought to  supersede- and then place upon the section such a construction as would make  the  rights  conferred by  it  co-extensive  with  the disability imposed by the superseded provisions.  This Court observed  that first it would be ascertained as to what  the enacting part of the section provides on a fair construction of  the  words used according to the  natural  and  ordinary meaning and the non-obstante clause, was to be understood as operating  to  set  aside  as  no  longer  valid’   anything contained in relevant existing laws which were  inconsistent

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with the new enactment. (1)  [1951] S.C.R. 474. (3)  [1953] S.C.R. 1 (2) [1952]S.C.R. 218. 212 The non-obstante clause must be allowed to operate with full vigour in its own field.  In The Dominion of India and  Anr. v. Shrinbai A. Irani & Anr.(1) section 3 of Ordinance No. 19 of  1946  contained  a non-obstante clause  with  the  words "notwithstanding the expiration of the Defence of India Act, 1939, and the rules made thereunder, all requisitioned lands shall continue to be subject to requisition-until the expiry of this Ordinance and the appropriate Government may use  or deal  with  any  requisitioned land in such  manner  as  may appear to it to be expedient".  The non-obstante clause  was invoked in support of the submission that only those  orders which  would have ceased to be operative and come to an  end on the expiration of the Defence of India Act and the  Rules were  the orders which were intended to be  continued  under section  3 of the Ordinance.  This Court held that  although ordinarily there should be a close approximation between the non-obstante  clause and the operative part of the  section, the  non-obstante clause need not necessarily and always  be co-extensive  with  the operative part, so as  to  have  the effect  of  cutting down the clear terms  of  an  enactment. The,  non-obstante  clause  was held not  to  cut  down  the construction and restrict the scope of the operation of  the enactment,   but   was  to  be  understood  to   have   been incorporated in the enactment by way of abundant caution and not by way of limiting the ambit and scope of the  operative part  of the enactment.  The result was that all  immoveable properties which when the Defence of India Act expired  were subject  to  any requisition effected under the  Defence  of India  Act  and  Rules thereunder were  to  continue  to  be subject to requisition until the expiry of the Ordinance. Mr.  Palkhivala submitted that the  petitioner’s  contention that  the  order of the President was a nullity  was  not  a dispute within Article 363.  The ordinary meaning of dispute is  a contention, a controversy, a difference of opinion,  a conflict  of claims, and assertion of right on one side  and the  denial  of  it  by the  other.   In  Stroud’s  Judicial Dictionary it will appear that dispute as to whether a thing is   ultra  vires  is  nonetheless  a  dispute   within   an arbitration clause.  In United Provinces v. Governor-General in  Council(2)  the plaintiff asked for a  declaration  that certain,  provisions of the Cantonment Act, 1924 were  ultra vires.   The  ,Governor-General in Council denied  that  the provisions  were  invalid  and further  contended  that  the dispute was not justiciable before the Court.  It was h.-,Id that section 204 (1 ) of ’the Government of India Act,  1935 conferred exclusive jurisdiction on the Federal Court in any dispute.  between  the Governor-General in Council  and  any province  if  and  in so far as  the  dispute  involves  any question (whether of law or fact) on which the exist- (1)  [1955] 1 S.C.R. 206. (2) [1959] F.C.R. 124 213 ence  or extent of a legal right depends.  The law  in  that case was challenged to be ultra vires.  The plaintiff denied the  validity  of the law and the  respondent  asserted  its validity.   It  was,  therefore,  a  dispute  on  which  the existence  of a legal right depended.  In the  present  case the  dispute  is whether the President has or  has  not  the power to make the order impugned in these proceedings’. The  next  question  Which falls for  consideration  is  the

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meaning of the words "right accruing under", "any  liability or obligation arising out of", "any of the provisions of the Constitution".   It is obvious that if any right is said  to accrue  under  or  liability is said to  arise  out  of  any provision of the Constitution, the matter ends there as  far as  those  words  are concerned.   The  contention’  of  the petitioner  that  the President has no power  under  Article 366(22)  to  make  an order for  derecognition  is  a  right asserted  by  the  petitioner under the  provisions  of  the Constitution and it is also the petitioner’s contention that the  President has no right arising out of  Article  366(22) not  to make an order of derecognition.  It is necessary  to have recourse to Article 366(22) and Article 291 to find out the  nature  of the petitioner’s claim, the  extent  of  the petitioner’s  right  on the one hand and the nature  of  the order  of the President and the extent of the right  of  the President on the other. The most crucial words in Article 363 are "the provisions of the  Constitution relating, to any such  treaty,  agreement, covenant,  engagement, sanad or other similar  instruments". Mr.  Palkhivala’s  contention  was that  the  order  of  the President  under  Article  366(22) did not give  rise  to  a dispute in respect of a right accruing under the  provisions of  the Constitution relating to any agreement or  covenant. Ordinarily,  the  word "relate" means to bring  a  thing  or person  in  relation  to another, to  connect,  establish  a relation  between,  to  have reference to,  to  be  related, having relation to and to stand in some relation to  another thing.   This  is the dictionary  meaning.   Mr.  Palkhivala submitted  that  the provisions of the  Constitution,  viz., Articles  366(22), 291 and 362 might have reference  to  the Covenant  but were not related to the Covenant.  That  is  a mere verbal subterfuge because the word relate is synonymous with the word refer. When  Article  366(22)  was introduced  in  the  Constituent Assembly  as  will  appear  from  the  Constituent  Assembly Debates,  Vol.  10 it was said that "the form in  which  the Rulers  find recognition in the new Constitution in  no  way impairs  the democratic set up of the States".   Recognition of a Ruler was necessary for the limited purpose of  payment out  of  privy  purse and it had  no  other  reference.   In Maharaja Pravir Chandra Bhanj Deo Kakatiya 214 v.   The  State of Madhya Pradesh(1) the Ruler of the  State of Bastar contended that he was still a sovereign Ruler  and an   absolute  owner  of  certain  villages  and  that   the provisions  of the Madhya Pradesh Abolition  of  Proprietary Rights Act did not apply to him.  The Ruler of Bastar  ceded to  the Government of India full and exclusive authority  in relation to the governance of the State and this Court  held that  the  effect of the merger agreement was that  a  Ruler ceased  to be a Ruler of an Indian State and  under  Article 366(22)  of the Constitution a Ruler was recognised for  the purpose of privy purse guaranteed under Article 291.  In the Dholpur  case (supra) the claim to recognition of  Rulership is  said to be neither a matter of inheritance nor a  matter of  descent  by revolution.  This power  of  recognition  of Rulership is not traceable to any statutory authority and it is  not  a  power vested in the executive  by  virtue  of  a statute.   This  power is political power in  the  field  of paramountcy to which the Dominion Government and  thereafter the  Union Government succeeded.  Between the  execution  of the  covenants and the commencement of the Constitution  the Rajpramukh exercised the power of recognition upon political consideration.  (See  Umrao Singh Ajit Singh Ji  &  Anr.  v.

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Bhagwati  Singh  Balbir Singh & OrS.,(2).  The  Constitution does  not  mention any right to be recognised  nor  any  ob- ligation to recognise Ruler.  In Article 366(22) which is  a definition  clause is embedded only the political  power  to recognise a Ruler. Succession  to Rulership is not automatic in the sense  that one  who claims succession by law or custom is bound  to  be recognised.   If  it were so, the  Constitution  would  have provided.   Again, the words "for the time  being"  indicate that  the recognition is neither for any fixed duration  nor even  for  the  life time of any person nor is,  a  line  of succession is perpetuated. The  power  of  recognition of Rulers,  existed  during  the British days.  Between the Indian Independence Act, 1947 and the  coming into effect of the Constitution Rulers  were  so described   in   covenants   and   agreements   which   were unenforceable  in  municipal courts on the ground  of  those being  Acts of State.  It cannot be said that there  is  any right  to Rulership because the Constitution does not  enact that  there  shall  be Rulers or that  the  President  shall recognise  Rulers.   Therefore, there is  no  constitutional mandate  of  what was contended by the petitioner to  be  an institution  of  Rulership.  There cannot be said  to  be  a legal  right  to  recognition,  because  the  power  of  the President to recognise for the time being repels any concept of a legal right to Rulership.  The claim to recognition can only arise from the covenant or the Constitution.  The claim to recognition arises (1)[1961]2S.C.R.501. (2) A.I. R. 1956 S.C. 15. 215 from  the  covenants  and merger  agreements  and  not  from Article 366(22), because the covenants and merger agreements were signed by the Rulers and guaranteed by the  Government. Under Article 366(22) it was that Ruler or his successor who could be recognised.  The guarantee regarding succession  to the  gaddi according to law and custom is in  the  covenants and agreements.  Such succession can only mean succession to the  Ruler  who  signed the  covenant.   When  the  covenant guaranteed the succession, it was guarantee of succession to the   Ruler  who  signed  the  covenant.    Therefore,   the obligation  to  recognise  a  Ruler  arises  only  from  the covenants  and  agreements.  There is no  legal  enforceable right  to recognition under the co ant.  No legal  right  to Rulership arises under Article 366(22)either.  If there were legal  right, Article 366(22) would have said that  a  Ruler means  the Prince by whom any covenant was entered into  and who shall be recognised by the President as a Ruler. The recognition of Rulership does not exist in splendid iso- lation.   The recognition of Rulership is intended only  for the  purpose of Article 291 and Article 362 in  relation  to covenants  and merger agreements and for no  other  purpose. Therefore,  Article  366(22) is a  necessary  and  ancillary provision  relating  to  Articles  291  and  362.    Without recognition of Ruler under Articles 366(22) no effect can be given  to  payment  of  privy purse,,  guaranteed  in  the covenants and agreements, When counsel for the petitioner submitted that the order  of the  President  was  intended  to  abolish  the  concept  of Rulership, he was reading into the Constitution, a permanent constitutional  mandate for continuance of Rulers under  the rubric  of  recognition of Rulers.   Analogies  between  the President, Vice-President, the Chief Justice and the  Judges of  this  Court, the Judges of the High  Court,  the  Public Service  Commission  and  the Election  Commission  and  the

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Rulers  were drawn to support the theory that Rulership  was an  institution  like  the  offices  mentioned  by  way   of illustration.   These are constitutional offices  recognised by  the Constitution.  The sanction of these offices is  the Constitution.   It is sophistry to speak of Rulership as  an institution.    When   institutions   are   recognised   the Constitution has specifically designated and recognised them by  names,  like  Devaswom in  Article  290A,  the  National Library,  the  Indian  Museum, in List I  Entry  62  of  the Seventh Schedule, the Banaras Hindu University, the  Aligarh Muslim  University, the Delhi University in List I Entry  63 of   the   Seventh  Schedule.   Article   366(22)   has   no significance  apart from Articles 291 and 362.  Inasmuch  as there  is  no  legal  right  to  recognition  it  makes   no difference  whether there is derecognition of one  Ruler  or derecognition, of all the Rulers.  It was said that there is no 216 power of derecognition.  This Court has held in the  Dholpur case  (supra)  that  there is  power  to  derecognise.   The Constitution  does  not say that the President is  bound  to recognise   a  Ruler.   It  follows  therefore  that   after derecognition  he is not equally bound to recognise  another person as Ruler. The  second  limb of Article 363 speaks of  rights  accruing under  or  liability  or  obligation  arising  out  of   the provision  of  the  Constitution relating  to  covenants  or agreements.   It is, therefore, to be seen  whether  Article 366(22)  relates to covenants or agreements.  No person  can be  recognised as a Ruler under Article 366(22) until  first he  entered into a covenant, referred to in Article  291  or secondly he is recognised by the President as the succession of  the  Ruler recognised under the, first part  of  Article 366(22).  Therefore, the claim to be recognised a Ruler  can only  arise  if he or his predecessor signed  the  covenant. There is express and direct relation to covenants.   Counsel for  the  petitioner  submitted that  if  the  dominant  and immediate  purpose was not the enforcement of  the  covenant neither Article 291 nor Article 366(22) could be said to  be related to the covenants or merger agreements.  These  words "dominant immediate purpose of enforcement of the  covenant" are new words and therefore these words can neither be  read into  the Constitution nor the meaning of the words  ’relate to"  be  allowed to have such a constricted meaning  by  the introduction of alien words. It  was said that the covenants and merger  agreements  were meant  only  for  the purpose  of  identifying  the  Rulers. Article  366(22)  has been put in relation to Art.  291  and Art.  362 and one cannot abstract Article 366(22)  from  the collocation  of  those Articles.  All these  three  Articles 291,  362  and 366(22) stem from the  covenants  and  merger agreements  and but for the covenants and merger  agreements these   Articles   would  have  not  been   there   in   the Constitution.  The entire concept of recognition comes  from the covenants and merger agreements, and cannot be  divorced from  Articles 291 and 362.  The object of  Article  366(22) was  to subserve Articles 291 and 362 for understanding  and giving effect to them.  Ruler in Art. 366(22) is description of  the person referred to in Articles 291 and 362.  If  the petitioner   challenges  the  power  of  the  President   to derecognise him he claims that he has a right to continue as a Ruler which is a right related to covenants. It  was  said  that if the President  derecognises  one  the President  was  bound  to recognise another  person  as  his successor.  In 1956 the Ruler of Baudh in Orissa died.  The

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President  decided  not to recognise any  successor  to  the Ruler.   The widow was granted an allowance and  a  suitable residence was allotted to her use for her life-time.   Again in  1958  when  Mahant  Digvijay Das  of  Nandgao  died  the Rulership of Nandgaon was 217 allowed to lapse.  The widow was granted allowance.  No suc- cessor  to the Ruler was recognised.  In the year 1968  when the  Ruler  of  Delath died no successor to  the  Ruler  was recognised.   In the month of August, 1970 the Rulership  of Malpur was also allowed to lapse.  In the case of Baroda the Ruler   was.  derecognised  and  during  his  lifetime   his successor was recognised as a Ruler.  That was on grounds of misconduct.   These  cases indicate that no legal  right  to Rulership  was  asserted.  The President  in  recognising  a Ruler need not follow law of succession and above all  there is no legal obligation on the President to appoint a  Ruler. The  Attorney  General and Mr. Mohan  Kumarmangalam  rightly said  that the character and quality of recognition  by  the President was such that no duty was cast on the President to recognise  any  person as Ruler after  he  derecognised  one since  Article 366(22) did not contain words  of  compulsion that  a Ruler must be recognised for each State: and’  there must always be a Ruler for each State. It was said that the power of the President was used  after- the  Constitution Amendment Bill was rejected" by the  Rajya Sabha.   That  is  a totally  irrelevant  consideration  and cannot   prejudice  or  alter  the  Constitution.   If   the President has the power to derecognise, the power will speak and hold good. Mr. Palkhivala relied on the decisions of this Court as also the recent decision of the House of Lords in support of  the proposition that if the order was a nullity there was no bar of jurisdiction.  The decisions are Smt.  Ujjam Bai v. State of Uttar Pradesh(1), S. Pratap Singh v. The State of  Punjab (2),  MakhanSingh  v. State of Punjab(3), Lala Ram  Swrup  & Ors.  v.  Shikar  Chand and Ani.(4) and  Anisminic  Ltd.  v. Foreign  Compensation Commission(5).  It is a  general  rule that where Parliament has created new rights and duties  and has  appointed  a specific Tribunal  for  their  enforcement recourse   must  be  had  to  that  Tribunal   alone.    The jurisdiction  of the courts of Law in those cases is  ousted until the statutory process has been completed except in  so far as the courts may prohibit the Tribunal from  proceeding on  the  ground that it had no jurisdiction to  determine  a particular matter.  In situations, where the courts have  no jurisdiction to intervene, they may nevertheless review  the validity  of the final determination by the chosen  Tribunal either  on  the, ground that the authority was not  the  one designated by the Act or where it was empowered to determine an  issue it did not address itself to the matter  committed to  it  or where it violated the rule, of  natural  justice. All the decisions relied on by Mr. Palkhivala (1)[1963] 1 S.C.R. 778 (2) [1964] 4 S.C.R. 733 (3) [1964]  4 S.C.R. 779 (4) [1966]2 S.C.R. 553, (5)  [1969] 2 S.C.R. 147 218 dealt  with,  the power of the Court to  interfere  where  a statute  is  impeached  as ultravires or  action  under  the statute  is  said to be without jurisdiction  or  where  the action is said to be procedurally ultra vires as in the case of Ujjam Bai (supra) or where the executive act was malafide and  for alien purpose as in Pratap Singh’s case (supra)  or where  an order of detention under the Defence of India  Act was  challenged  in  violation of the Act and  also  on  the

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ground  that  it  was malafide as  in  Makhan  Singh’s  case (supra).  The decision of this Court in Dhulabai and  others v.  The State of Madhya Pradesh(1) on which Counsel for  the petitioner relied is again illustrative of the type of cases where  Courts  have  interfered  on  the  ground  that   the appointed  ’Tribunal did not comply with provisions  of  the statute  or  exceeded  jurisdiction  or  failed  to  observe principles of natural justice. The  decision of the House of Lords in the  Foreign  Compen- sation  Commission  case  (supra) on  which  the  petitioner relied  contained a clause in a statute called  the  Foreign Compensation  (Determination  and  Registration  of  Claims) Order  which provided for determination of  compensation  by the   Commission   and   contained  a   section   that   the determination by the .Commission of ’any application made to them  under the Act was not to be called in question in  any court  of  law.  It was held that a finality clause  of  the nature in that statute protected determination which was not a  nullity.   The English Company owned property  in  Egypt. The  property  was sequestrated under the  provisions  of  a proclamation  by  the Egyptian Authorities.   The  plaintiff company  sold  the  sequestrated  property  to  an  Egyptian Organisation.   The English Company made an  application  to the  Foreign Compensation Commission and claimed  that  they were  entitled in the Egyptian Compensation Fund in  respect of  their  sequestrated  property.  The  Commission  made  a determination that the plaintiff company failed to establish a claim.  The plaintiff company then brought an action for a declaration   that  the  determination  was  a  nullity   by contending that the Commission had misconstrued the order in finding that the Egyptian Organisation to whom the plaintiff had  sold  the  property was the  plaintiff’s  successor  in title.    The   House   of  Lords   held   that   the   word "determination"  was  not  to  be  construed  as   including everything which purported to be a determination but was not in   fact  a  determination  because  the   Commission   had misconstrued  the  provisions of the  order  defining  their jurisdiction.   The  ratio of the decision of the  House  of Lords  was not whether the Foreign  Compensation  Commission made  a wrong ,decision but whether the Commission  enquired into and decided (1)  [1968] 3 S.C.R. 662 219 a matter which they had no right to’ consider.  The  Foreign Compensation Commission in that case, held that the Egyptian Organisation to whom the plaintiff company had sold the pro- perty  was  the  successor-in-title  and  as  the   Egyptian Organisation  was  not a British  National,  the  Commission rejected the claim of the English Company.  These  decisions deal with the jurisdiction of the appointed Tribunal,  viz., whether  the Tribunal has exceeded its jurisdiction  or  has failed to exercise its jurisdiction. In the present case,, the question for consideration is  the provision  of  the Constitution which  under  some  Articles confer  jurisdiction  on this Court and in  another  Article excludes’ the jurisdiction of the Court.  A privative clause of  this  nature in the Constitution stands on  an  entirely different  footing  from a clause of that  nature  in  other statutes.   In ordinary statues, statutory  authorities  are entrusted  with powers and duties.  When a  finality  clause appears in such statutes, the courts interfere with acts  or decisions  of  such  statutory bodies  or  authorities,-  by issuing writs of mandamus, prohibition or certiorari, on the grounds of commanding them to exercise their jurisdiction or not  to  exceed  their  jurisdiction or  not  to  usurp  any

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jurisdiction   they  do  not  possess  or  to  observe   the principles of natural justice or where the courts find  that the   acts   of   decisions  are   tainted   by   extraneous consideration or collateral reasons or malafide or fraud. In the present case, the petitioners have invoked the juris- diction  of  this Court under Article 32.   Article  32,  is excluded  by the opening words in Article 363.  It was  said by  counsel  for  the  petitioner  that  the  order  of  the President  was  a nullity, the petitioners  property  rights were  invaded,  and,’ therefore, the  jurisdiction  of  this Court  was  attracted.   The  fallacy  of  the  petitioner"s submission  is  in  totally overlooking  the  provisions  of Article  363 which exclude in express and unambiguous  terms the jurisdiction of this Court notwithstanding any provision of the Constitution.  The courts normally leap in favour  of stretching  the  jurisdiction but when  the   Constitution which  invests  this Court with jurisdiction with  one  hand divests  it  of jurisdiction with  another  in  specifically designated  disputes  the attempt to overreach  the  Article which   bars   jurisdiction  of  courts  will   be   totally impermissible.  It is at this stage that the words of Holmes C. J. in Communications Assns. v. Douds(1) will throw light. "The  provisions  of the Constitution are  not  mathematical formulae  having  their  essence in  their  form;  they  are organic living institutions transplanted from English  soil. Their  significance  is  Vital,  not formal;  it  is  to  be gathered not simply by (1) 339 U.S. 382 L744Sup.CI/71 220 taking the words and a dictionary, but by considering  their origin   and  the  line  of  growth".   Therefore,  if   the Constitution has placed a restriction on the jurisdiction of this  Court,  it  will he trifling and  tinkering  with  the Constitution if this Court interfered, in matters which were excluded from jurisdiction.  It is well-settled that what is forbidden directly cannot be achieved indirectly. In interpretting these four allied Articles when this  Court finds  that  it has no jurisdiction it will say  so  and  in saying  so, the jurisdiction of this Court is  not  whistled down  in any manner.’ The jurisdiction of this Court is  all pervasive and all embracing in regard to fundamental  rights of  citizens.  The petitioners are citizens but  the  rights they  claim are recognition of rulership, payment  of  privy purse  and  enjoyment of princely privileges which  are  not fundamental  rights on account of  unenforceability.   These special  rights belong to a world of their own and that  is, why  the makers of the Constitution intertwined Article  363 with the allied Articles 291, 363, 366(22) as the  forbidden frontiers of Courts. It  is now to be found out whether there are  disputes  with regard to payment of privy purses and whether such  disputes can  be  said  to  arise  out  of  the  provisions  of  this Constitution,  and  thirdly Whether the  provisions  of  the Constitution  in Article 291 relate to covenants and  merger agreements..  Mr.  Palkhivala contended that there  were  no disputes as to payment of privy purses.  This submission  is unacceptable.   The  petitioner’s claim in the  petition  to continue  to  be recognised a Ruler is for  the  purpose  of payment  of  privy  purse.   It  is  not  suggested  that  a recognition, of Ruler is in the abstract.  A recognition  of a  Ruler is not by itself property.  When there has been  an order of recognition of a Ruler the Ruler then becomes,  en- titled  to  payment of privy purse and  enjoyment  of  other rights  and  privileges mentioned in Articles  291  and  362

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respectively.  For days there were discussions, debates  and disputes at the Bar as to whether there were disputes as  to privy purses.  The pleading and the affidavit evidence point with  unerring  accuracy that the  petitioners  claim  privy purse, assert title to privy purse and insist on payment  of privy  purse guaranteed in covenants and  merger  agreements and  recognised in Article 291 and by reason  of  provisions contained in Article 366(22) which speaks of recognition  of Rulers  they  ask for relief with regard to  continuance  of recognition  of Rulers and payment of privy purses.   It  is indisputable  that the merger agreements and  covenants  not only  speak  of  payment of privy  purse  but  also  mention guarantee of the Government in that behalf.  These covenants and 221 merger  agreements were totally unenforceable prior  to  the Constitution.   Article 291 is a constitutional  recognition of  the  guarantee regarding privy purse  mentioned  in  the Covenants  and agreements.  Article 291 does not create  any new  ’and  independent  right of  payment  of  privy  purse. Article 291 is related to the covenant and is not  unrelated to the covenants and merger agreements. When Article 291 was introduced in the Constituent  Assembly as   Article  267  it  was  said  to   give   constitutional recognition  to  those  guarantees and to  provide  for  the expenses  being charged on the central revenues  subject  to such recoveries as might be made from time to time from  the States in respect of these payments.  Article, 291(2) as  it stood  at the time of the commencement of  the  Constitution indicated  that  where territories of any Indian  State  are comprised  within a State specified in Part A or Part B  of the First Schedule, there shall be charged. on and paid  out of the consolidated fund of that State such contribution, if any,  in respect of the payments made by the  Government  of India under clause (1) and for such period as, may,  subject to  any agreement entered into that behalf under clause  (1) of  Article  278 be determined by order  of  the  President. Article 278 of the Constitution as it stood in 1950 provided that  the  Government of India might, subject  to  the  pro- visions of clause (2) of Article 278 enter into an agreement with the Government of the State specified in Part B of  the First  Schedule with respect to inter alia the  contribution by  such  State  in  respect of  any  payment  made  by  the Government of India under clause (1) of Article 291 and when an agreement was so, entered into the provisions of  Chapter I of Part XII of the Constitution (Articles 264 to 291 under the  title  Finance) shall in relation to such  States  have effect subject to the terms of such agreement.  Article  278 and  Article  291  (2) were  omitted,  by  the  Constitution (Seventh Amendment) Act, 1956 in the year 1956.  By the same Constitution (Seventh Amendment Act, 1956 the First Schedule to  the Constitution ’as it originally stood  consisting  of Parts  A,  B  and  C  in  regard  to  the  States  and  the, territories  of  India was repealed and substituted  by  the First’   Schedule  containing  the  States  and  the   Union territories.   These provisions in the Constitution as  they stood  in  1950  indicated that  Article  291  embodied  the constitutional   recognition  for  the  fulfilment  of   the guarantees  and assurances given by the Government of  India in  respect  of  privy purses  and  provided  for  necessary adjustments  in respect of privy purse entailed  by  changed circumstance and conditions. 222 This Court has held in H. H. The Maharana Sahib Shri Bhagwat Singh  Bahadur  of  Uaipur v. The  State  of  Rajasthan  and

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Ors.(1) that in order to give constitutional recognition  to the guarantees and assurances under the Covenants and Merger Agreement Articles 362, 363, 131 proviso and 291 were incor- porated  in  the  Constitution.  The  Covenants  and  Merger Agreements  did  not  have any legal  sanction  inasmuch  as neither  the Government of India Act, 1935 provided for  the same  nor were these enforceable in municipal  courts.   The sanction  of the Covenants and Merger Agreements was  purely political.   The treaties in the United States are  enforced as  law.   It is not so in our Constitution nor  is  it  so under  the  British law.  During the British Rule  in  India political  pensions were given to persons in Indian  States. They  were given because of reasons of State  policy.   When the  Constitution  came  into force the  guarantee  for  the payment of the sums of money as privy purse contained in the Covenants  and Agreements was continued by Article  291  but the esential political character of the privy purse was pre- served  by Article 363 by enacting that the guarantee  could not be enforced in municipal courts. It might be asked here as to whether any Ruler of an  Indian ’State  without  being recognised a Ruler by  the  President could  I prefer any claim to privy purse under Article  291. The  answer would be. in the negative, because the words  of Article  291 in the Constitution predicate that where  under any  agreement or covenant entered into by the Ruler  of  an Indian State before the commencement of the Constitution the payment  of  any  sum free of tax  has  been  guaranteed  or assured 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.  The Ruler of an.   Indian State  mentioned  in  the  first  part  of  Article  291  is different  to the Ruler mentioned in Article 291  (b).   The latter refers to the Ruler defined under Article 366(22) and recognised  by  the President.  At once  the  provisions  of Article  366(22)  are attracted to find out as to  who  that Ruler is.  It is a Ruler who is recognised by the  President ’as  the Ruler of the State.  It is because of the  combined effect  of Articles 291. 366(22) and 363 that this Court  in Nawab Usman Ali Khan A v.     Sagarmal  (supra)  held   that privy  purse was paid for political ,consideration  and  was not a right legally enforceable in any, municipal court  and the  political  character was preserved  by  Article-363  by taking  privy purse beyond the reach of courts of  law.   In Sri  sudhansu Shekhar Singh Deo v. The State of Orissa  ,and Anr. (2) this Court said on a consideration of Articles 291 (1) [1964] 5 S.C.R. 1 (2) [1971] 1 S.C.R. 779 223 and  362 that if in disregard of the guarantee or  assurance given under the, covenant or agreement any legislation  were made it could not be questioned in Court because of  Article 363.   It  is true that Article 362 speaks of  guarantee  of rights other than that of privy purse. It  was  said  on behalf of the petitioner  that  the  words "charged  on  and  paid out of  the  consolidated  fund"  in Article  291 meant that a security was created in favour  of the petitioner in respect of privy purse, and, therefore,  a new  and  independent right was created.  It was  said  that Article  291  was  a  self  sustaining  or  self   ordaining provision.   Article 291 draws its sustenance  and  vitality from  covenants and merger agreements.  If payment  has  not been  guaranteed under the covenants or  merger  agreements, Article  291  does not come into operation  at  all.   Under Article  291  effect  is to be given to  the  covenants  and

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merger  agreements  where  payment  of  any  sum  has   been guranteed.   Each covenant has to be examined and  construed to  give effect to the guarantee mentioned in  the  covenant ’and recognised in the Article.  It will be utterly wrong to equate the words "charged on the consolidated fund" with  "a charge  by way of security", because Article 291 only  gives effect  to  guarantees in the covenants  and  agreements  by charging the payment on the consolidated Fund.  Article  291 cannot be said to create a new right or a new obligation  by charging the sum on the consolidated fund because the charge is  only  in respect of the right and obligation  under  the covenant   and  it  is  therefore  neither  a  new  nor   an independent  right.   It  was said that  the  covenants  and merger  agreements  were merely to be referred  to  for  the purpose of identifying the Rulers and the privy purse.   The identification is a verbal subterfuge.  Assuming Article 291 were  a right enforceable a Ruler would have to prove  first that he was a Ruler who was recognised by the President  and thus  entitled to privy purse the payment of  whereof  was guaranteed   by  the  covenant  or  the  merger   agreement. Secondly,  he  would have to prove the covenant  whereby  he claimed  ’a  privy purse.  For that again be would  have  to prove  on  the  strength  of  the  covenant  or  the  merger agreement.   Proof  is  in  aid  of  title.   Proof  is  not dissociated  from  claim.  Claim will  fail  without  proof. Therefore, covenants and merger agreements are  indissolubly bound up with Article 291. Again,  there  were  different  merger  I  agreements   with different Rulers providing for different sums for payment to the  Rulers and also in some cases for payment of  different sums  to  successors.   The Orissa  and  Chattisgarh  Merger Agreement  did not mention about payment of privy  purse  to the   successors  to  Rulers.   The  Tehri  Garhwal   Merger Agreement mentioned also 224 the  heirs  ’and successors of the Maharaja for  payment  of privy purse.  The Rampur Merger Agreement mentioned  certain amount as privy purse for the Nawab and a different sum  for payment  to  the successors.  The  Bhopal  Merger  Agreement mentioned  a certain sum for the Nawab and a  different  sum for  the Nawab and a different sum for his  successor.   The Agreement of Himachal Pradesh Rulers mentioned a certain sum for  the Ruler but did not mention ’about  successors.   The Bilaspur  Merger Agreement mentioned a certain sum as  privy purse  of. the Raja which was to include the  allowances  of the  Yuvraja but did not mention anything about  successors. These  difference  illustrate that Article  291  is  vitally related  to  the covenants and merger  agreements  and  draw substance from them. The words "charged on and paid out of the consolidated fond" in  Article 291 mean that the sum shall not be submitted  to the vote of Parliament, and Article 113(1) makes a provision to  that effect.  Article 291 does not by itself create  any independent right of any Ruler to be paid any sum out of any charged fund.  If it were a charge, it would be a debt which would be assignable.  It a Ruler were to ’assign or mortgage or  create a charge in respect of his privy purse in  favour of  another person there would have been no  legal  validity for  such assignment and mortgage or charge.  The reason  is that  there is no vested legal right in praosenti in  favour of  a  Ruler.   Again,  a privy purse  is  a  payment  of  a political character and is legally unenforceable.  There  is no  right either in rem or in personam in favour of a  Ruler in  regard to payment of privy purse.  Supposing  the  privy purse  were  reduced  would it be competent to  a  Ruler  to

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maintain  an action for payment of the entire sum.   Article 363  would  be an impediment and no court would be  able  to adjudicate the question.  The words "charged on and paid out of  the consolidated fund" are technical  Parliamentary  ex- pressions  for payment out of public revenues.  These  words have  been  borrowed from  English  Parliamentary  Practice. These  words have a specific legal history since  1816  when Consolidated Fund Act was passed in England and in 1854  the English Act provided in 2 Schedules as charges, payable  out of  the consolidated Fund and charges upon which vote  would lie. Prior  to 1935 the system of presenting accounts before  the legislature was under four heads, i.e. transferred subjects, reserved  subjects voted ’and non-voted items.  In 1935  the Government  Act,  1935  used  the  expressed  "charged"   in replacement   of   ,the  expression  "voted".    After   the Constitution  came into existence the same system  continued for presentation of the Annual Financial  Statement  under Article 112(2) and Appropriation Bill under Article  114(1). The Estimates under Article 113(1) 225 were  (a) sums required to meet the expenses as  expenditure charged upon the consolidated fund and (b) the sum  required to  meet the other expenditure proposed to be met  from  the consolidated  fund.   The Appropriation Bill means  (a)  the grants  made  by  the  House of  the  People;  and  (b)  the expenditure  charged  on  the  consolidated  fund  but   not exceeding  in  any case the amount shown  in  the  statement previously laid before Parliament.  Article 113 says that so much of the estimates as relates to expenditure charged upon the, consolidated fund shall not be submitted to the vote of Parliament  but  there is nothing to prevent  discussion  in either  House of Parliament of any of those estimates.   The expenditure  is  charged  and  removed  from  the  vote   of Parliament. In the English Parliamentary Practice what is charged is the expenditure  that is to be made without vote of  Parliament. These are first, a sum appropriated to a particular  service which cannot be spent on another service, secondly, the  sum appropriated  is  the  maximum  sum,  and  thirdly,  it   is available  only  in  respect of charges  which  have  arisen during one of the years to which the relevant  Appropriation Act applies (See May Parliamentary Practice, 17th ed.  713). The tests used to determine whether the expenditure involves a charge on the consolidated fund are that a charge must  be new  and  distinct,  that  it must be  payable  out  of  the exchequer  and it is to be effectively imposed.  In  England it will appear that the Ministers of the Crown Act, 1937  in section  4  enacts  that a pension  under  that  section  is payable as of :right.  Section 7 of that English Act of 1937 used the expression "shall be charged and payable out of the consolidated  fund".   These provisions in the  English  Act show first that the right to be paid is under section 4  and the  creation of a charge on the consolidated fund is  under section 7. The words "charged on the Consolidated fund" in Article  291 mean that the expenditure is non-votable and these are terms of  public finance.  Charge on the Consolidated Fund  is  an accounting  arrangement before Parliament.   Certain  expen- diture is authorised out of public revenue as independent of Parliamentary  control.   Charge is meant  for  expenditure. The  words  "paid out of the consolidated fund"  denote  the source  from which the expenditure will be met.   The  words "charged  and  paid  out of the consolidated  funs’  do  not create  any  legal right in a party.  The right  to  payment

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arises  dehors  the charge on the  consolidated  fund.   The charge  on the consolidated Fund is for purposes of  payment in  ’accordance with the guarantee and assurance of  payment under  the  covenants and merger agreements.  The  right  to payment  of privy purse arises from recognition  by  Article 291 of guarantee of payment of privy 226 purse  under  a  covenant.  The scheme  of  Article  291  is similar  to Article 290 where the expenses of any  court  or commission  or  pension  payable to any  person  who  served before  or  after the commencement of  the  Constitution  in connection  with the affairs of the Union or the  State  are charged on the Consolidated fund.  Article 290A which speaks of  a sum of Rs. 46,50,000 to be charged on and paid out  of the  Consolidated Fund of the State of Kerala every year  to the  Travancore  Devaswoin  Fund is  a  different  provision because  it  speaks of payment to a designated person  as  a part  of the Constitution.  No such comparable words are  to be found in Article 291, namely, that the sums shall be paid to the Rulers.  The reasons are two-fold.  First, payment of privy  purses  is under covenants or merger  agreements  and secondly  these  payments were charged on  the  Consolidated Fund  of  India  because  the payment was  not  out  of  the Consolidated Fund of any State. Originally,  Article 291 contained the expression "paid  out of"  in both sub-clause (a) of clause (1) and clause (2)  of Article  291  for the purpose of  integration  of  finances, assets,  and liabilities of the new Constitution as  between Federal Government at the Centre and the Indian States which guaranteed payment of Privy Purse under covenants and merger agreements.  The original Article 291 was the result of  the decision  of  the  Constituent  Assembly  regarding  sharing between the Consolidated Fund of India and the  Consolidated Fund of Part A and Part B States regarding privy purse. Counsel  on behalf of the petitioner submitted that unless the words "charged on and paid out of the consolidated fund" mean  security and right to be paid neither  the  President, nor the Chairman or Deputy Chairman, nor the Speaker and the Deputy Speaker, nor the Judges of the Supreme Court, nor the Comptroller  and Auditor General would have security  as  to payments.   But, these persons do not derive their right  to be  paid from any covenant or merger  agreement.   Secondly, these  persons hold offices under the  Constitution  whereas the Rulers do not.  Thirdly, Articles 59(3), 97, 125, 148(3) indicate  in no uncertain terms that they shall be  entitled to  such emoluments and allowances and privileges as may  be determined  by  Parliament  by  law.  In  the  case  of  the President, the Chairman, the Deputy Chairman of the  Council of  States, the Speaker and the Deputy Speaker of the  House of  the  People Articles 59 (3) and 97 provide  that  there, shall be paid to them such allowances and salaries as may be fixed by Parliament, by law and until the provision in  that behalf  is  so  made such salaries  and  allowances  as  are specified in the Second Schedule.  As for the Judges of this Court Article 125(1) enacts that there shall be paid to  the Judges of this Court, such 227 salaries  as are specified in the Second Schedule.   Article 148(3) enacts that the salaries and other conditions of  the Comptroller  and  Auditor General shall be such  as  may  be determined  by Parliament and until they are so  determined, shall be as specified in the Second Schedule.  Therefore, it was an unfortunate comparison made by Mr. Palkhivala between these persons and the Rulers.  To illustrate, some of  these persons  become entitled to salaries by virtue of  provision

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in the Constitution, e.g. Article 1.25 directing payment  of their salaries and therefore the charge on the  Consolidated Fund.  in respect of such salaries e.g. in Article  112  (d) (i) cannot be intended again as a diction for payment. It  was  said  on  behalf of  the  petitioner  that  in  the covenants and merger agreements, the payment of privy  purse was  to be free of all taxes whereas under the  Constitution privy purse was to be exempt free of all taxes on income and therefore there was a new right.  This is totally misreading Article  291 (b) where it is said that "the sums so paid  to any  Ruler shall be exempt from all taxes on  income".   The words  "so  paid’ relate to the slum  guaranteed  under  the covenants and the agreements and to the same sum charged  on the  Consolidated Fund It is only when payment is made to  a Ruler  that it shall be exempt from taxes on income That  is why  the  words "so paid to any Ruler" in  Article  291  (b) indicate  that when the sums are paid to a Ruler out of  the Consolidated  Fund the sums shall be exempt from all  taxes. The Constitution does not mention payment of Privy Purse  to any particular person.  One has to turn to the covenant  and the merger agreement to have all the particulars of persons, sums  guaranteed and assured.  Article 291 does  not  create any   new  and  independent  right  but  it   merely   gives constitutional recognition to guarantees under covenants and merger agreements which Were and are unenforceable as  those arise, out of Acts of State. (See State of Gujarat v.  Vohra Fiddali  (supra).  Article 291 is strung with the  covenants because  such  sums  in  Article  291  (a)  mean  the   sums guaranteed under covenants and merger agreements.  The  fons et  origo  is the guarantee contained in the  Covenants  and Agreements. Another  argument was advanced on behalf of  the  petitioner that there was a substitution of rights under covenants  and merger  agreements  by Article 291.  The  rights  guaranteed under  the  covenants and merger agreements are  matters  to which  Article 291 relates.  The guarantee of payment  under the  covenants  and merger agreements  is  recognised  under Article 291.  This Article gives effect to the covenants and agreements and it is related to these. There were some arguments that if the amount charged on  the consolidated fund on account of privy purse were not paid, 228 the  same  would be carried over, in the  Consolidated  Fund from  year to year.  That is not so because any sum  charged on the consolidated fund is not carried to the next year but it lapses. Article  362  has been held by this Court  in  Udaipur  case (supra)  to fall within Article 363.  Article 291  has  also been  held by this Court to fall within the bar  of  Article 363  in  Nawab  Usman  Ali  Khan’s  case  (supra).   It  was suggested  that  the only Article which  could  fall  within Article 363 was Article 362 which was in closest  proximity. That  would  be  an  erroneous  approach  to  interpret  the Constitution.   Article 363 uses the words  "provisions-  of the Constitution".  The word "provisions" indicate more than one  Article.  Even at the risk of repetition it has  to  be stated that Articles 291, 362 and 366(22) have a most direct and visible relation to Article 363. Mr.  Palkhivala contended that the petitioner  had  existing rights   to  privy  purge  and  privileges  prior   to   the Constitution and that such existing rights were incorporated in the Constitution by Articles 294 (b) and 295 (1 ) (b)  of the  Constitution.  It. has been consistently held  by  this Court  that till recognition, either express or implied,  is granted  by  the new sovereign, the Act of  State  continues

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(See State of Gujarat v. Vohra Fiddali (supra).   Therefore, the  covenants  and  merger  agreements  were  outside   the jurisdiction of municipal courts.  The administration of the provincially  merged  and  centrally merged  States  was  by reason  of the Extra Provincial Jurisdiction Act 1947  which applied  the laws of the Dominion of India to  those  merged States.  It was only by reason of the-merger agreement  that the  Dominion  of  India  exercised  such  extra  provincial jurisdiction.   The Instruments of Accession did not  confer such  authority.   Even  when sections 290A  and  290B  were introduced   in   the   Government  of   India   Act,   1935 administration  in the provincially merged States was  still carried  on  the  strength of  the  merger  agreement.  (See Seraikela  case  (supra).  The merged States  were  not  yet completely integrated with India. The States Merger (Governors’ Provinces) Order, 1949  stated that  as from the appointed day, i.e.,the date of  the  com- mencement of the order 1 August, 1949, the States  specified in the Schedule "shall be administered in all respects as if they form part of the provinces specified in the heading  of the  Schedule".   Again in section 7 of  the  States  Merger (Governors’  Provinces)  Order, 1949 it is stated  that  all liabilities  in  respect  of  loans,  guarantees  and  other financial  obligations of the Dominion Government  as  arise out of covenants, of a merged State, including in particular the  liability for the payment of any sums to the  Ruler  of the merged State on account of his privy purse or to persons in the merged State on account of political pensions and 229 the  like shall as from the appointed day be liabilities  of the absorbing Provinces unless the loan, guarantee or  other financial obligation is relateable to central purpose.   The privy purse is mentioned separately to and independently  of loans,  guarantees  and other  financial  obligations.   The character  of  the liability regarding privy  purse  is  not changed  by the States (Merger Governors’ Provinces)  Order, 1949.  The Act of State which commenced with the Instruments of  Accession continued even after the merger agreements  as has been held by this Court in Vohra Fiddali’s case (supra). The liabilities in Articles 294 (b) and 295 (1 ) (b) of  the Constitution   refer  to  other  legal  rights  which   were enforceable  in  a  court of law.  Privy  purses  under  the covenants  and merger agreements were no such  legal  rights enforceable in a court of law for the obvious reason that if prior   to  the  Constitution  the  covenants   and   merger agreements were sought to be enforced in a municipal,  court the  Government  would have demurred on the plea of  Act  of State.   That  plea  in  bar  would  be  available  to   the Government of India as a defence to any claim under Articles 294  (b)  and 295 (1) (b). (See Union of India and  Ors.  v. Gwalior  Rayon  Silk Manufacturing (Weaving)  Co.  Ltd.  and Anr.)  (1)  Furthermore, Article 295 (1 ) (b)  cannot  apply because  neither  privy  purse nor  privileges  are  matters enumerated  in  the Union List.  Articles 291  and  362  are special provisions dealing with privy purses and privileges. Articles  294(b)  and  295(1) (b) deal  with  revolution  of liabilities of the Dominion and Part B States  respectively. The  Constitution has dealt with privy purse and  privileges in separate Articles.  Therefore, Articles 294(b) and 295 (1 )   (b)  can  have  no  application  to  privy  purses   and Privileges. (See The South India Corporation (P) Ltd. v. The Secretary, Board of Revenue, Trivandrum and Anr.) 2 )  where this Court held that Article 372 was a general provision and Article 277 was a special provision and a special  provision was  to be given effect to the extent of its scope,  leaving

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-the  general provision to control cases where  the  special provision  does not apply.  The petitioner’s  contention  on existing  rights  prior  to  the  Constitution  as  well  as continuance thereof falls. Agreement to pay privy purses and to continue privileges  of the  Princes  which were. guaranteed by  the  Government  of India before the Constitution- were all political agreements born  out  of political bargains to achieve  integration  of Indian  States with the Dominion of India.   This  political bargain  was carried into the Constitution by the  insertion of  Article 291 for payment of privy purse, Article 362  for continuance   of   privileges  and   Article   366(22)   for recognition  of  princes, and the  political  character  was preser- [1] [1964] 7 S.C.R. 892 at 908 [2] [1964] 4 S.C. R. 280 at 297 230 ved, by inserting Article 363 which bar the jurisdiction  of the  court in respect of disputes, arising out of  covenants and  agreements and these Articles which are related to  the covenants and agreements. Mr. Palkhivala contended that the order affected the  rights of  the petitioner under the Wealth Tax Act, the  Income-tax Act, the Gift Tax Act, the Hindu Succession Act, the Estates Duty Act, Customs Regulation, Code of Civil Procedure,  Code of Criminal Procedure and Madhya Bharat Gangajali Trust Fund Act,  1954.   The Wealth Tax Act, 1957 defines  a  Ruler  as defined  in clause (22) of Article 366 of  the  Constitution and  enacts certain exemptions in respect of certain  assets namely  the  official  residence in the  occupation  of  the Ruler.  The right of the petitioner under the Wealth Tax Act is dependent on being recognised as a Ruler by the President under  Article 366(22).  If the order cannot  be  challenged for  the  reasons given above, the petitioner  can  have  no right under the Wealth Tax Act, because the right under  the Wealth  Tax  Act is derived only from his recognition  as  a Ruler under Article 366(22).  Under the Income Tax Act, 1922 (,section  4(3)(x))  and the Income Tax Act,  1961  (section 10(19) amount received by a Ruler as privy purse is not  in- clued  as income.  Under Income Tax Part B  States  Taxation concessions  Order,  1950 the bonafide annual value  of  the palaces  declared  by  the Central  Government  as  official residence   of   the  Ruler  is  exempted   from   taxation. Therefore,  if  the rights are derived from  recognition  of Rulership by the President under Article 366(22) and if  the recognition cannot be impeached no right arises.  Under  the Gift  Tax  Act, tax is not leviable on gifts  out  of  privy purse  for  maintenance of relatives or for  performance  of official ceremonies.  If no privy purse is paid no  question of  any  gift out of privy purse arises.   Under  the  Hindu Succession  Act the Act shall not apply to any estate  which descends  to a single heir by the terms of any  covenant  or agreement.   Succession is a right which can be  claimed  by heirs  of the petitioners.  The petitioners cannot have  any fundamental  right  of  any  such  right  under  the   Hindu Succession  Act.  Under the Estates Duty Act, exemption  is given  in  respect of any building in the  occupation  of  a Ruler  declared  by the Central Government as  his  official residence.   If the petitioner disposes of his  property  he will  not  be affected.  The duty will have to  be  paid  by someone  who  will inherit or succeed.  As for  the  Customs Regulations exemption is available only to Rulers recognised by  the  President.   When he ceased  to  be  recognised  no exemption  applies.  The trust properties arise only in  the case  of Madhya Bharat Gangaiali Fund Trust Act, 1954.   The

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Ruler  of  Gwalior  is  one  of  the  trustees  and  is  the President.  The Trust will not fail.  The trustees wilt con- tinue  and  the  Act may have to be amended  in  a  suitable manner. 231 The  Civil  Procedure Code grants exemption to  Rulers  from being  sued.   Exemption  from being sued  is  not  personal liberty  within the meaning of Article 21.   Exemption  from being sued is pro-cedural advantage which will no longer  be available.  Again, s. 197 of the Code of Criminal  Procedure is   a  procedural  advantage.   In  all  these  cases   the petitioner  cannot  complain  in  this  Court  because   the position  is derived from the recognition of  Rulership  and Art. 363 is an insurmountable and impenetrable bar. Recognition of Rulership is not a legal right.  It is not  a right  to  property.  Privy purse is not a  legal  right  to property.   There  is no fundamental right to  privy  purse. There is no fundamental right to Rulership.- A  series of decisions of this Court have held that  Article 363  is  a  bar to rights  and  privileges,  recognition  of Rulership  from being agitated in courts.   These  decisions have spoken the words of the Constitution. The  petitions,  therefore, fail and  are  dismissed.   Each party will pay and bear its own costs.                            ORDER In accordance with the opinion of the majority the petitions are  allowed and writs will issue declaring that the  orders made by the President on September 6, 1970 challenged  here, were  illegal  and  on that  account  inoperative  and  the, petitioners  will  be  entitled to  all  their  pre-existing rights and privileges including right to privy purses, as if the  orders  have not been made.  The petitioners  will  get their  costs  of the petitions.  One hearing  fee  in  those petitions  in which the petitioners have  appeared’  through the, same counsel. K.B.N. 232