Raghunathrao Ganpatrao Vs. Union of India [1993] INSC 62 (4 February 1993)
Pandian, S.R. (J) Pandian, S.R. (J) Sharma, L.M. (Cj) Mohan, S. (J) Jeevan Reddy, B.P. (J) Bharucha S.P. (J)
CITATION: 1993 AIR 1267 1993 SCR (1) 480 1994 SCC Supl. (1) 191 JT 1993 (1) 374 1993 SCALE (1)363
ACT:
Constitution of India, 1950-Articles 291, 362, 366 (22) and 363-A--Constitution (Twenty-Sixth Aniendment Act, 1971- Constitutional validity of-Whether violates basic structure and essential features of the Constitution.
Constitution of India 1950-Article 368-Power of amendment- Limitations.
Constitution of India, 1950-Articles 14, 19(1)(f), 21, 31(1), (2), 291, 362, 368-constitution (Twenty-Sixth Amendment) Act, 1971-Abolition of privy purse ether violative of Article ether personality of Constitution change ether theory of political justice tenable.
Constitution of India, 1950-Articles 291, 362, 368- Constitution (Twenty-Sixth Amendment) Act, 1971-Abolition of privy purse ether Articles 291, 362 organic unity of India facilitated.
Constitution of India, 1950-Articles 291, 362, 368- Constitution (Twenty-Sixth Amendment) Act, 1971-Abolition of privy purses-Will of the people expressed through Parliament-Court's duty whether to concern with moml aspect of amendments.
WRIT PETITION NO. 351 OF 1992
HEAD NOTE:
The petitioner was a Co-Ruler of an Ex-Indian State of Kurundwad. His Co-Ruler, on behalf of both, executed an instrument of accession under Section 5 of the Government of India Act, 1935 and their State became a part of the Dominion of India. A Merger Agreement was executed on the 19th February, 1948 and the administration of the State of the petitioner was also handed over to the Dominion Government on the 8th March, 1948.
The case of the petitioner was that under the Merger Agreement he 480 481 was entitled to receive annually from the revenues of the State his privy purse as specified in the Merger Agreement.
Certain groups of States entered Into covenants for the establishment of United States comprising the territories of the covenanting States and Talukas with a common executive, legislature and judiciary.
On 13th October, 1949 the Constituent Assembly of India adopted inter-alia two Articles-namely, Article 291 relating to payment of privy purse and Article 362 relating to personal rights and privileges of the Rulers.
The Rulers and Rajpramukhs of the States agreed to adopt the Constitution drafted by the Constituent Assembly of India.
In pursuance of Article 366(22) of the Constitution of India, the petitioner was recognized as the Ruler of the Kurundwad State with effect from 26th January, 1950 and had been in the enjoyment of the privy purse, privileges, titles and dignities issued by Merger Agreement, and by the Constitution of India.
The Parliament enacted the Constitution (Twenty-Sixth Amend- ment) Act of 1971, repealing Articles 291 and 362 of the Constitution, a new Article 363-A was inserted and new clause (22) to Article 366 was substituted. It resulted in depriving the Rulers of their recognition already accorded to them and declaring the abolition of the privy purse and extinguishing their rights and obligation in respect of privy purse.
The petitioner filed the writ petition challenging the impugned Amendment Act as unconstitutional and violative and the fundamental rights of the petitioner guaranteed under Articles 14, 19(1)(f), 21 and 31(1),(2) of the Constitution.
In the Writ Petition No. 351/72, I.A. Nos. 1 to 3 of 1992 were filed by the daughters of Late Maharaja of Mysore.
WRIT PETITION NO. 798 OF 1992 The petitioner was the successor to the Ruler of Mysore also challenged the Constitution (26th Amendment) Act of 1971 on the same grounds as in Writ Petition No. 351/72.
482 The petitioner in W.P. No. 351/72 submitted that Articles 291, 362 and 366(22) of the Constitution were integral part of the constitutional scheme and formed the important basic structure since the underlying purpose of these Articles was to facilitate stabilization of the new order and ensure organic unity of India; that the deletion of the Articles damaged and demolished the very basic structure of the Constitution; that the covenants entered into were in the nature of contracts which was guaranteed constitutionally and affirmed by making the privy purse an expenditure charged under the Consolidated Fund of India; that the deletion of the Articles amounted to a gross breach of the principle of political justice enshrined in the preamble by depriving or taking away from the princes the privy purses which were given to them as consideration for surrendering all their sovereign rights and contributing to the unity and integrity of the country; that the Rulers acceded to the Dominion of India and executed Instruments of Accession and Covenants in consideration of the pledges and promises enshrined in Articles 291 and 362; that the impugned Amendment Act was beyond and outside the scope and ambit of the constitutional power of the Parliament to amend the Constitution as provided under Article 368 of the Constitution; that the Constitution (Twenty-Sixth Amendment) Act was unconstitutional, null, void and violative of Articles 14, 19(1) (g), 21, 31 (1) and (2) of the Constitution; and that Articles 291 and 362 when incorporated were intended to grant recognition to the solemn promises on the strength of which the former Rulers agreed to merge with the Indian Dominion and the guarantee of privy purses and certain privileges was as a just quid pro quo for surrendering their sovereignty and dissolving their States.
The petitioner in I.A. No. 3 submitted that the fact that the expression "guarantees" occurring both in Article 32 and Article 291 besides in Article 362 ('guarantee') clearly demonstrated the mind of the Constitution-makers that they intended the said provisions of Articles 291 and 362 to be the basic and essential structure of the Constitution.
The petitioner in 1-A No. 1 contended that the erstwhile rulers of the princely States formed a class apart and there was real and substantial distinction between them and the citizenry of India; that the impugned amendment which violated the basic structure of the Constitution was unconstitutional that the Amendment Act was violative of the essential features contained in Articles 14 and 19(1)(f).
483 The petitioner in W.P. No. 798/92 added that the two Articles were not at all amendable on the principle of prohibition against impairment of the contractual obligations; that the impugned Amendment Act was an ugly epitome of immorality perpetrated by the India Parliament, that, too, In the exercise of its constituent powers and the said Amendment Act constituted an unholy assault on the spirit which was impermeable and that the principle of justice, fairness and reasonableness were beyond the amending powers of the Parliament; that the equality clause as interpreted by this Court in various decisions was the most important and indispensable feature of the Constitution and destruction thereof would amount to changing the basic structure of the Constitution and that the authority of the Parliament to amend the Constitution under Article 368 could be exercised only if the Amendment in the Constitution was justifiable and necessitated because of the socioeconomic reasons broadly referred to in the directive principles of the State Policy and that any Amendment unrelated to any genuine compulsion amounts to an abuse of the power and was therefore a fraud on the exercise of power itself Respondent Union of India contended that the Instruments of Accession were only the basic documents but not the individual agreements with the Rulers and therefore to attribute the agreements entered into by Rulers as a sacrifice by the Rulers was unfounded; that the nature of the covenants was not that of a contract because a contract was enforceable at law while these covenants were made non- justiciable by the Constitution vide Article 363; that the covenants were political in nature and that no legal ingredients as the basis could be read into these agreements and that the guarantees and assurances embodied in Articles 291 and 362 were guarantees for the payment of privy purses;
that such a guarantee could always be revoked in public interest pursuant to fulfilling a policy objective or the directive principles of the Constitution; that being so, the theory of sanctity of contract or unamendability of Articles 291 or 362 did not have any foundation; and that the theory of political justice was also not tenable because political justice meant the principle of political equality such an adult suffrage democratic form of Government etc.
Dismissing the Writ Petitions and the I.As., this court,
HELD : (By Full Court) ; The Constitution (Twenty-Sixth Amendment) Act of 1971 is valid in its entirety. [529G] 484 Per S. Ratnavel Pandian, J. on his behalf and on behalf of the Chief justice of India, B.P. Jeevan Reddy and S.P. Baucha, JJ.:
1.01. The only question is whether there is any change in the basic structure of the Constitution by deletion of Articles 291, 362 and by insertion of Article 363A and amendment of clause (22) of Article 366. The question is answered in the negative observing that the basic structure or the essential feature of the Constitution is /are in no way changed or altered by the Constitution (Twenty-Sixth Amendment) Act of 1971. [529D] 1.02. In our democratic system, the Constitution is the supreme law of the land and all organs of the government- executive, legislative and judiciary derive their powers and authority from the Constitution. A distinctive feature of our Constitution is its amendability. [518G] 1.03. The power of amendment is plenary and it includes within itself the power to add, after or repeal the various Articles of the Constitution including those relating to fundamental rights, but the power to amend does not include the power to alter the basic structure or framework of the Constitution so as to change its identity. In fact, there are inherent or implied limitations on the power of amendment under Article 368. [515G] 1.04. There are specific provisions for amending the Constitution. The amendments had to be made only under and by the authority of the Constitution strictly following the modes prescribed, of course, subject to the limitations either inherent or implied. The said power cannot be limited by any vague doctrine of repugnancy. There are many outstanding interpretative decisions delineating the limitations so that the Constitutional fabric may not be impaired or damaged. The amendment which is a change or alteration is only for the purpose of making the Constitution more perfect, effective and meaningful. But at the same time, one should keep guard over the process of amending any provision of the Constitution so that it does not result in abrogation or destruction of its basic structure or loss of its original identity and character and render the Constitution unworkable. [519B-D] 1.05. The Courts are entrusted with important Constitutional responsibilities of upholding the supremacy of the Constitution. An amendment of a Constitution becomes ultra vires if the same contravenes or transgresses the limitations put on the amending power because there 485 is no touchstone outside the Constitution by which the validity of the exercise of the said powers conferred by it can be tested. [518H, 519A] 1.06. The Court is not concerned with the wisdom behind or propriety of the Constitutional amendment because these are the matters for those to consider who are vested with the authority to make the Constitutional amendment. All that the Court is concerned with are
(1) whether the procedure prescribed by Article 368 is strictly complied with? and
(2) whether the amendment has destroyed or damaged the basic structure or the essential features of the Constitution. [519D-E] 1.07. If an amendment transgresses its limits and impairs or alters the basic structure or essential features of the Constitution then the Court has power to undo that amendment. [519F] 1.08. No principle of justice, either economic, political or social is violated by the Twenty-sixth Amendment. Political justice relates to the principle of rights of the people, i.e., right to universal suffrage, right to democratic form of Government and right to participation in political affairs. Economic justice is enshrined in Article 39 of the Constitution. None of these rights are abridged or modified by this Amendment. [523C] 1.09. There is no question of change of identity on account of the Twenty-sixth Amendment. The removal of Articles 291 and 362 has not made any change in the personality of the Constitution either in its scheme not in its basic features nor in its basic form nor in its character. The question of identity will arise only when there is a change in the form, character and content of the Constitution. 1527G] 1.10. A moral obligation cannot be converted into a legal obligation. Courts are seldom concerned with the morality which is the concern of the law makers. [527D-E] 1.11. In a country like ours with so many disruptive forces of regionalism, communalism and linguism, it is necessary to emphasise and re-emphasise that the unity and integrity of India can be preserved only by a spirit of brotherhood. India has one common citizenship and every citizen should feel that he is Indian first irrespective of other basis. In this view, any measure at bringing about equality should be welcome. There is no legitimacy in the argument in favour of continuance of princely 486 privileges. Abolition of privy purses is not violative of Article 14. [528F] 1.12. The Court cannot make surmises on 'ifs' and 'buts' and arrive to any conclusion that Articles 291 and 362 should have kept in tact as special provisions made for minorities in the Constitution. It is but a step in the historical evolution to achieve faternity and unity of the nation transcending all the regional, linguistic, religious and other diversities which are the bed-rock on which the constitutional fabric has been raised. The distinction between the erstwhile Rulers and the citizenary of India has to be put an end to so as to have a common brotherhood.
[529E-F] Nawab Usmanali Khan v. Sagamial [1965] 3 SCR 201; H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India, [1971] 3 SCR 9; Minerva Mills v. Union of India, [1980] 3 SCC 625; His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala and Another, [1973] 4 SCC 225; Shankari Prasad v. Union of India, [1952] SCR 89; Sajjan Singh v. State of Rajasthan, [1965] 1 SCR 933 at 966; Golak Nath v. State of Punjab, [1967] 2 SCR 762 AIR 1967 SC 1643; Rustom Cawasjee Cooper v. Union of India, [1970] 3 SCR 530; Waman Rao and Others v. Union of India and Others, [1980] 3 SCC 587 at 588-89; Maharao Sahib Shri Bhim Singhji v. Union of India and Others, [1981] 1 SCC 166 at 212; Madhav Rao v. Union, [1971] 3 SCR 9 at 74 and 83; Indira Nehru Gandhi v. Raj Narain, [1975] Suppl. SCC 1; Sanjeev Coke Manufacturing Company v. Bharat Cooking Coal Ltd., [1983] 1 SCC 147, Varinder Singh & Ors. v. State of U.P., [1955] SCR 415 at 435; Maneka Gandhi v. Union of India, [1978] 2 SCR 621; R.D. Shetty v. International Airport Authority of India, [1979] 3 SCC 489; Kasturi Lal Lakshmi Reddy v. State of Uttar Pradesh, [1986] 4 SCC 704; E.P. Royappa v. State of Tamil Nadu, [1974] 2 SCR 348; Krishna Kumar v. Union of India, [1990] 4 SCC 207; Mfd. Usman & Ors. v. State of Andhara Pradesh and Ors., [1971] Suppl. SCR 549, Ramesh Prasad Singh v. State of Bihar & Ors., [1978] 1 SCR 787, rererred to.
Report of the Joint Select Committee on Indian Constitutional Reforms (1933-34); Report of (he Expert Committee headed by Nalini Ranjan Sarkar (published in December, 1947), Report of the Indian States' Finances Enquiry Committee, chaired by Sir V.T. Krishanamachary (appointed on 22nd October, 1948). Report of the Rau Committee chaired by Sir B.N. Rau (appointed in November, 1948); Dias: Jurisprudence, Fifth Edition, at pages 355 and 356; Bentham : Theory of Legislation, Chapter XII at page 60, referred to.
487 Per S. Mohan, J. (Concurring) 1.01. One of the tests of identifying the basic feature is, whether the identity of the Constitution has been changed. [537A] 1.02. The personality of the Constitution must remain unchanged. It is not necessary that the constitutional amendment which is violative of a basic or essential feature should have an instant or immediate effect on the basic structure. It is enough if it damages the essential feature. [537B] 1.03. The test to be applied, therefore, is whether the amendment contravenes or runs counter to an imperative role or postulate which is an integral part of the Constitution.
[537B] 1.04. Turning to basic structure, the proper test for determining basic feature is to find out what are not basic features. Rights arising out of covenants which were non- justiciable cannot be regarded as basic feature. Where, therefore, Article 363 makes these features non-justiciable, the question of basic feature does not arise. [539H, 540A] 1.05. The guarantees in Articles 291 and 362 are guarantees for the payment of privy purses. Such a guarantee can always be revoked in public interest; more so, for fulfilling a policy objective or the directive principles of the Constitution. This is precisely what the preamble to the impugned amendment says. That being so, the theory of sanctity of contract or the unamendability of Article 291 or 362 does not have any foundation. The theory of political justice is also not tenable since political justice means the principle of political equality such as adult suffrage, democratic form of Government, etc. [539D-E] 1.06. If the 26th amendment aims to establish an egalitarian society which is in consonance with the glorious preamble, how could this provision be called a basic structure? No doubt, in Madhav Rao's case, it was held that these provisions (Articles 291, 362, 366 (22) are an integral part of the Constitution. Apart from the fact that all these reasons were addressed against the President under Article 366(22), this Statement cannot tantamount to basic structure. Nor would it mean the same as the basic structure. 1559G-H] 1.07. To determine whether these provisions constitute basic struc- 488 ture or not, they cannot be viewed in the historic background. By repeal of these provisions the personality of the Constitution has not changed. India could still retain its identity and it can hardly be said that the personality has changed. [560A] 1.08.The repudiation of the guarantees might result in the nullification of a just quid pro quo. But, if it is the will of the people to establish an egalitarian society that will be in harmony with the changing of times. It cannot be denied that law cannot remain static for all times to come.
[560C] 1.09 Unity and integrity of India would constitute the basic structure as laid down in Kesavananda's case but it is too far fetched claim to state that the guarantees and assurances in these Articles have gone into the process of unification and integration of the country. One cannot lose sight of the fact that it was the will of the people and the urge to breathe free air of independent India as equal citizens that brought about the merger of these princely States. Therefore, the contention that the Articles 291 and 362 facilitated the organic unity of India is unacceptable.
[562E-F] 1.10 In this case, the amendment does not either treat unequals as equals or in any manner violates Article 14.
All the privy purses holders are treated alike by the withdrawal of all those privileges. [565E] 1.11. This Court cannot concerns itself with the moral aspect of the impugned amendment. The impugned amendment is the will of the people expressed through Parliament. [568A] Virendra Singh and Others v. State of Uttar Pradesh, AIR 1954 SC 447 at 454; H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India, [1971] 3 SCR 9; His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala, [1973] Supp. SCR 1; Waman. Rao and Others v. Union of India and others, [1980] 3 SCC 587 at 588-89; Maltarao Sahib Shri Bhim Singh Ji v. Union of India & Ors., [1981] 1 SCC 166 at 212; Indira Nehru Gandhi v. Raj Narain, [1975] Supp, SCC 1 at 252; Ajay Hasia v. Khalid Mujib Sehravardi, [1981] 1 SCC 722; Minerva Mills Ltd. v. Union of India & Ors., [1981] 1 SCR 206 & 119861 3 SCR 718; O.N. Mohindroo v. District Judge, Delhi, [1971] (111) SCC 9; Mohanlal Jain v. His Holiness Maharaja Shri Swai Mari Singh Ji, [1962] 1 SCR 702; Ramesh Prasad Singh v. State of Bihar
Another v. Vithal Rao & Ors., [1973] 3 SCR 39; Usman Ali Khan v. Sagar 489 Mal [1965] 3 SCR 201; Golak Nath v. State of Punjab, [1967] 2 SCR 762; Weems v. United States, 54 Law Edition 801;
Francis Coralie Mullin v. Administrator, Union Territory of Delhi & Ors., [1981] 1 SCC 608 at 617, referred to.
"The Framing of India's Constitution' : By B. Shiva Rao at page 520; Robert S. Peck- "The Bill of Rights & the Politics of Interpretation", at page 316-317; "Law and Morality" : By Louis Blom Cooper Gavin Drewry at page 2; Kent Greenawalt :
"Conflicts of Law and Morality", 1987 Edition at page 338, referred to. & ORIGINAL JURISDICTION: Writ Petition (Civil) Nos. 351/72 and 798 of 1992.
(Under Articte 32 of the Constitution of India).
G. Ramaswamy, Attorney General, Soli J. Sorabjee, H.N. Salve, G.L. Sanghi, Dr. V. Gaurishankar, D.D. Thakur, A.K. Ganguli, J.B. Dadachandji Mrs. A.K. Verma, Sunil Gupta, S. Sukumaran, Manmohan, Mrs. S. Pathak, S. Rajappa, Ms. A. Subhashini, P. Parmeshwaran, C.V.S. Rao, R.F. Nariman, M.P. Vinod, R. Nagendra Naidu, N.N. Bhatt, C.N. Sreekumar, Pichai, D. Goburdhan, Santokh Singh, Ms. M. Karanjawala, Antip Sachthey and G. Prakash for the appearing Parties.
The Judgments of the Court were delivered by.
S. RATNAVEL PANDIAN, J. These two Writ Petitions call in question the constitutional validity of the Constitution (Twenty-sixth Amendment) Act of 1971 inter-alia, on the ground that it violates the basic structure and essential features of the Constitution of India and is, therefore, outside the scope and ambit of constituent powers of the Parliament to amend the Constitution as provided under Article 368 of the Constitution. In addition, certain directions or suitable orders are sought for declaring that the petitioner continue to be the Rulers or the 'Successor Rulers', as the case may be and directing the respondent Union of India to continue to recognise their personal rights, amenities and privileges as Rulers of their erstwhile States and also continue to pay privy purse to them in addition to their arrears of amounts. For facilitating a proper understanding of the controversy that has led to the filing of these two Writ Petitions and the interlocutor Applications 1 to 3 of 1992 in Writ 490 Petition No. 351 of 1972, a synoptical resume of the case as adumbrated in Writ Petition No. 351/72 with the historical background may be stated :
The petitioner, Shri Raghunathrao Raja was the Co-Ruler of Indian State of Kurundwad Jr. which was prior to 15th August, 1947 a sovereign State in treaty relationship with, and under the suzerainty of the British Crown.
On the commencement of the Indian Independence Act, 1947, British Paramountcy lapsed and the Indian States became completely sovereign and independent. They were free to accede to either of the two Dominions of India or Pakistan or to remain independent. The petitioner's co-Ruler, on behalf of both, executed an instrument of accession under Section 5 of the Government of India Act, 1935, as adopted under the Indian Independence Act, 1947. This instrument was accepted by the Governor General of India and the State thus became a part of the Dominion of India. Likewise, Rulers of most of the other Indian States also executed similar instruments which were accepted by the Governor General. By the said instrument, the petitioner accepted the matters specified in the schedule thereto as matters with respect to which the Dominion Legislature may make laws for the State and declared his intent that the Governor General of India, the dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, subject to the terms of the instrument, exercise in relation to the Kurundwad State such functions as may be vested in them by the Government of India Act, 1935 as in force in the Dominion of India on the 15th August, 1947. According to the petitioner, clause 7 of the Instrument provided that nothing therein shall be deemed to commit the Ruler in anyway to acceptance of any future Constitution of India or to fetter his discretion to enter into agreements with the Government of India under any such future Constitution. Subsequently, a number of Rulers executed Agreements of Merger and transferred the administration of their States to the Dominion Government.
The Merger Agreement was in the form given in the 'White Paper on Indian States' and it was executed on the 19th February, 1948. Then the administration of the State of the petitioner was handed over on the 8th March, 1948.
The case of the petitioner is that under the Merger Agreement he was entitled to receive annually from the revenues of the State his privy 491 purse as specified in the Merger Agreement (as amended by an order of Government of India in 1956) free of taxes, besides reserving his personal rights, privileges and dignities.
Certain groups of States entered into covenants for the establishment of United States comprising the territories of the covenanting States and Talukas with a common executive, legislature and judiciary. The covenants inter-alia provided for the administration of United States by a Rajpramukh aided and advised by a Council of Ministers.
They also envisaged the establishment of a Constituent Assembly charged with the duty to frame Constitution for the United States within the framework of covenants and of the Constitution of India. Each of the covenants was concurred in by the Government of India which guaranteed all its provisions including provisions relating to the privy purse, personal privileges etc. etc. However, it was later desired that the Constitution of the United States should also be framed by the Constituent Assembly of India and form part of the Constitution of India. It was decided in consultation with the Government of the United States that the Constitution of India as framed by the Constituent Assembly of India should itself contain all the necessary provisions governing the constitutional structure of the United States as well as the provisions for the guarantee contained in the covenants and the Merger Agreements. In pursuance of this decision the necessary provisions including part VII providing for the Government, legislature, judiciary, etc.
of the United States as well as certain separate articles governing other matters, for example, the privy purse and privileges of Rulers bringing them within the framework of the covenants were included in the Constitution of India.
Accordingly on 13th October, 1949 the Constituent Assembly of India adopted inter-alia two Articles- namely, Article 291 relating to payment of privy purse and Article 362 relating to personal rights and privileges of the Rulers.
Amendment relating to the United States and other States which had not merged were also adopted and these States were called Part 'B' States. The Rulers and Rajpramukhs of the States agreed to adopt the Constitution as drafted by the Constituent Assembly of India and issued proclamations directing that the Constitution to be adopted by the Constituent Assembly of India shall be the Constitution for the United States. Supplementary covenants were also executed by the covenanting States which covenants were concurred in and guaranteed by Government of India.
Thereafter, the Constituent Assembly passed and adopted the Constitution. According to the petitioner, it was only on the 493 was to terminate the privy purses and privileges of the former Indian Rulers and to terminate expressly the recognition already granted to them under those two deleted Articles. According to the learned counsel appearing for the writ petitioners the withdrawal of the guarantees and assurances given under those articles and the abolition of the privy purse, personal rights, privileges and dignities is in violent breach of the power of Parliament acting as a constituent body under Article 368 of the Constitution inasmuch as it not only sought to amend the Constitution but also destroy the basic philosophy, personality, structure and feature of the Constitution.
Though it is not necessary to narrate in detail the historical events leading to the transfer of power and the integration of Indian States consequent upon the political and constitutional changes, yet a prefatory note of the past historical background may be stated so as to have a better understanding of the policy step taken for the integration of the States in terms of the consolidation of the country.
Though India is geographically one entity yet throughout its long and past chequered history it never achieved political homogeneity. There were about 554 States (subject to a marginal variation as found in various Reports), out of which the States of Hyderabad and Mysore were left territorially untouched. Two hundred and sixteen states were merged in the adjoining provinces in which they were situated, or to which they were contiguous. Five were taken over individually as Chief Commissioners' provinces under the direct control of the Government of India besides twenty-one Punjab Hill States which comprised Himachal Pradesh. Three hundred and ten were consolidated into six Unions, of which Vindhya Pradesh was subsequently converted into a Chief Commissioner's province. Thus, as a result of integration, in the place of 554 states, fourteen ad- ministrative units had emerged. This was a physical or geographical consolidation.
The next step was to fit all these units into a common administrative mould. Administration in the erstwhile States was in varying stages of development and, with a few exceptions it was both personal and primitive. Such states being Mysore, Baroda, Travancore and Cochin could stand comparison with their neighboring provinces and in some respects were ahead of them. But there were smaller States where, owing mainly to the 449 slenderness of their resources, the rulers were not in a position to discharge even the elementary functions of government. Between these two extremes, there were several States with administrative systems of varying degrees of efficiency.
In the past, the comparative Indian area covered by the States was 48 per cent of the total area of the Dominion of India, the relative population ratio of the States was 28 per cent of the total population of the Dominion of India.
All the above Indian states formed a separate part of India before their merger with the rest of India. It is common knowledge that the aim of Government of India Act, 1935 was to associate the Indian states with the British India as equal partners in loose federation. When India became independent by the Indian Independence Act of 1947, British paramountcy in respect of the Indian states lapsed.
Therefore, theoretically though the Rulers became independent in actual fact almost all the Rulers signed Instruments of Accession in August 1947 surrendering Defence, External Affairs and Communications. The Rulers immediately after independence became divided into four classes. All the agreements of merger and covenants provided for the fixation of the Rulers' privy purse which was intended to ;cover all the expenses of the Rulers and their families including the expenses of their residences, marriages and other expenses etc. Under the terms of the agreements and covenants entered into by the Rulers, privy purses were paid to the Rulers out of the revenues of the States concerned and payments had so far been made accordingly. During the course of the discussion with the Indian States Finances Enquiry Committee, it was urged by most of the States that the liability for paying privy purses of Rulers should be taken over by the Centre. Having regard to the various factors, it was decided that the payments should constitute a charge on the Central revenues.
The privy purses settlements, were, therefore in the nature of consideration for the surrender by the Rulers of all the ruling powers and also for the dissolution of the States as separate units.
it is stated that the total amount of the privy purse came to about Rs. 5.8 crores per annum and the quantum of privy purse each year was liable to reduction with every generation. According to V.P. Menon, who was the Constitutional Advisor to the Governor General till 1947 and then the Secretary to the Ministry of States and closely connected with the 495 annexation of the princely states "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." He pointed out that "the cash balances were to the tune of Rs. 77 crores and that palaces in Delhi alone were worth several lakhs of rupees." It is appropriate to refer to the speech of Sardar Vallabhbhai Patel made on 12th October 1949 in the Constituent Assembly on the Draft constitution, on which reliance was placed by the writ petitioners. The speech reads thus :
"There was nothing to compel or induce the Rulers to merge the identity of their States.
Any use of force would have not only been against our professed principles but would have also caused serious repercussions. If the Rulers had elected to stay out, they would have continued to draw the heavy civil lists which they were drawing before and in large number of cases they could have continued to enjoy unrestricted use of the State revenues.
The minimum which we could offer to them as quid pro quo for parting with their ruling powers was to guarantee to them 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. We would do well to remember that the British Government spent enormous amounts in respect of the Mahratta settlements alone. We are ourselves honouring the commitments of the British Government in respect of the persons of those Rulers who helped them in consolidating their empire. Need we cavil then at the small purposely use the world small price we have paid for the bloodless revolution which has affected the destinies of millions of our people.
justice to them; let us place ourselves in their position and then assess the value of their sacrifice. The Rulers have now discharged their part of the obligations by transferring all ruling powers and by agreeing to the 496 integration of their States. The main part of our obligation under these agreements, is to ensure that the guarantees given by us in respect of privy purse are fully implemented.
Our failure to do so would be a breach of faith and seriously prejudice the stabilization of the new order." The constitutional provisions of Articles 291 a,-,id 362 which are now deleted by Section 2 of the impugned Constitution (Twenty-sixth) Amendment Act as they stood, read as follows "291-Privy purse sums of Rulers (1) Where under any covenant or agreement entered into by the Ruler of any Indian State before the commencement of this Constitution, the payment of any sums, free of tax, has been guaranteed or assured by the Government of India to any Ruler of such State as privy purse (a) such sums shall be charged on, and paid out of, the consolidated Fund of India; and (b) the sums so paid to any Ruler shall be exempt from all taxes on income.
(2) Where the territories of any such Indian State as aforesaid are comprised within a State specified in Part A or Part B of the First Schedule, there shall be charged on, and paid out of, the Consolidated Fund of that State such contribution, if any, in respect of the payments made by the Government of India under clause (1) and for such period as may, subject to any agreement entered into in that behalf under clause (1) of Article 278, be determined by order of the President.
362 Rights and privileges of Rulers of India States In the exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in clause 497 (1) of Article 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State.' Clause (22) of Article 366 was amended by Section 4 of the impugned Act of 1971. We shall reproduce that clause as it stood then and the substituted clause (present) consequent upon the amendment.
Unmended Clause Ruler" in relation to an Indian State means the Prince, Chief or other person by whom any such covenant or agreement as is referred to in clause (1) of Article 291 was entered into and who for the time being is recognized by the President as the Ruler of the State, and includes any person who for the time being is recognized by the President as the successor of such Ruler." Substituted or amended clause "Ruler" means the Prince, Chief or other person who, at any time before the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971 was recognized by the President as the Ruler of an Indian State or any person who, at any time before such commencement, was recognized by the President as the successor of such Ruler.' In this connection, the new Article 363-A which has been inserted by section 3 of the impugned Amendment Act which is also relevant for our purpose may be reproduced :
363-A Recognition granted to Rulers of Indian States to cease and privy purses to be abolished Notwithstanding anything in this Constitution or in any law for the time being in force- (a) the Prince, Chief or other person who, at any time before the commencement or the Constitution (Twentysixth Amendment) Act, 1971 was recognized by the President as the Ruler of any Indian State or any persons who, at any time before such commencement, was recognized by the President as the successor of such ruler shall, on 498 and from such commencement, cease to be recognized as such Ruler or the Successor of such Ruler.
(b) on and from the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971 privy purse is abolished and all rights, liabilities and obligations in respect of privy purse are extinguished and accordingly the Rulers, or as the case may be, the successor of such Ruler, referred to in clause (a) or any other person shall not be paid any sum as privy purse.
The submissions advanced by Mr. Soli J. Sorabjee the learned senior counsel appearing on behalf of the writ petitioner in Writ Petition No. 351 of 1972 are thus.
Articles 291, 362 and 366(22) of the Constitution were integral part of the constitutional scheme and formed the important basic structure since the underlying purpose of these Articles was to facilitate stabilization of the new order and ensure organic unity of India. These Articles guaranteed pledges to the Rulers based on elementary principles of justice and in order to preserve the sanctity of solemn agreements. It was only by the incorporation of these Articles that the unity of India was achieved by getting all the Rulers within the fold of the Constitution, and that the deletion of these Articles has damaged and demolished the very basic structure of the Constitution.
The covenants entered into were in the nature of contracts which had been guaranteed constitutionally and affirmed by making the privy purse an expenditure charged under the Consolidated Fund of India and the use of the expressions 'guaranteed or assured by the Government of the Dominion of India to any Ruler" as embodied in Article 291 and the expression 'guaranteed and assurance given under such covenants or agreements as is referred to in clause (1) of Article 291............... as comprised in Article 362 were a permanent feature of the Constitution reflecting the intention of the founding fathers of the Constitution and as such these two Articles should have been kept intact.
According to the learned counsel, the deletion of these Articles amounted to a gross breach of the principle of political justice enshrined in the preamble by', depriving or taking away from the princes the privy purses which were given- to them as consideration for surrendering all their sovereign rights and contributing to the unity and integrity of the country 499 and that the deletion of these Articles by the impugned Amendment Act, is arbitrary, unreasoable and violative of Article 14 of the Constitution. Further it has been urged that the Rulers acceded to the Dominion of India and executed Instruments of Accession and Covenants in consideration of the pledges and promises enshrined in Articles 291 and 362 and that the impugned Amendment Act is beyond and outside the scope and ambit of, the constitutional power of the Parliament to amend the Constitution as provided under Article 368 of the Constitution.
Mr. Soli J. Sorabjee, the learned senior counsel in his additional written submissions has further urged that without the co-operation of the Rulers, not only the territory of India, its population, the composition of the State Legislatures, the Lok Sabha and Rajya Sabha but also the Constitution that was adopted on 26th November, 1949 would have been basically different and that India i.e.
Bharat would have been fundamentally different from the Bharat that came into being.
In Writ Petition No. 351 of 1972 in Ground Nos. 38, 39 and 40, it is contended that the Constitution (Twenty-sixth Amendment) Act is unconstitution, null void and violative of Articles 14, 19(1)(g), 21, 31 (1) and (2) of the Constitution.
Mr. Harish Salve, the learned senior counsel contended that 291 and 362 when incorporated were intended to grant recognition to the solemn promises on the strength of which the former Rulers ageed to merge with the Indian Dominion and the guarantee of privy purses and certain privileges was as a just quid pro quo for surrendering their sovereignty and dissolving their States. It has been stated that the constitutional guarantees and assurances promising continuance of privy purse as enshrined in the Agreements and Covenants were 'an integral part of the Constitutional Schemes' and 'an important part of the Constitutional structure' and they were to be fully honoured and not cast away on a false morass of public opinion or buried under acts of States, but the impugned Act, ex facie has abolished and destroyed those constitutional provisions of Articles 291 and 362 affirming the guarantees and assurances given to agreements. To highlight the signature of those agreenents whereby the Rulers were persuaded to sign the instruments, the statement of Shri V.P. Menon who was Closely connected with the annexation of the princely states and the speech of Sardar Vallabhbhai 500 Patel made in the Constituent Assembly were cited.
It is further emphasized that Sardar Patel also made it clear that according to the vision and views of the Constitution makers, the guarantees of Privy Purse, privileges etc., were perfectly in keeping with the democratic ethos and principle of the Indian people. Then the learned counsel stated that the views expressed in the Constituent Assembly were unanimously accepted and there was no dissent and that in fact the closing remarks in the debate of Dr. B. Pattabhai Sitaramayya were not only remarkably confirmatory of the permanence and indefeasibility of the aforesaid guarantees and assurances but also went a long way in determining that the said guarantees and assurances have come to stay as an integral and untouchable part of the basic structure of the Constitution.
Finally, it was said that there can be no basic structure of a Constitution divorced from the historical evolution of the precepts and principles on which the Constitution is founded. Any effort to determine the basic structure of the Constitution without keeping a finger on the historical pulse of the Constitution may well lead to substantial injustice. According to him, if the historical approach to the test of basic structure is kept in view, the guarantees and assurances of the privy purses, privileges, etc. granted by the Constitution-makers by incorporating Articles 291, 362 and 366 (22) in the Constitution framed by them would, without any doubt or dispute, emerge in their own rights 'as basic features' of the Constitution which cannot be abrogated or annihilated by any Constitutional amendment.
What he fmally concluded is that the guarantees and assurances of the privy purses, privileges etc. contained in the above three Articles were, in fact, the reflections of the aforesaid virtues of the Constitution makers which are the very virtues which characterized the personality of the Indian Constitution and that the Objects and Reasons of the impugned Amendment clearly establish the mala fides of the Amendment.
Mr. A.K. Ganguly, the learned senior counsel appearing in IA. No. 3 of 1992 in W.P. No. 351 of 1972 pointed out that after the Articles 291, 362 and 366 (22) were adopted by the Constituent Assembly of India on 12th, 13th, 14th and 16th October of 1949, Maharaja of Mysore then issued a proclamation on 25th November 1949 to the effect that the Constituent Assembly of Mysore and Maharaja adopted the Constitution of India which would be as passed and adopted by the Constituent Assembly of India. On 501 the following day, namely, 26th November, 1949, the Constituent Assembly adopted the Constitution of India.
Thereafter, on 23rd January, 1950, Maharaja of Mysore executed the Merger Agreement with the Government of India.
The learned counsel after giving a brief history of the Merger of the princely States, stated that the fact that the framers of the Constitution adroitly chose the words "guarantee or assured" unequivocally conveys the intention of the framers of the Constitution to continue the guarantee as per the covenants in their plain meaning. Learned counsel submitted that the fact that the expression "guaranteed" occurring both in Article 32 and Article 291 besides in Article 362 ('guarantee') clearly demonstrates the mind of the Constitution makers that they intended the said provisions of Articles 291 and 362 to be the basic and essential structure of the Constitution. According to him, to preserve the sanctity of these rights, the framers of the Constitution chose to avoid voting in Parliament on the amount to be paid as privy purses and keeping that object in their view, they framed Articles 291(1) reading "Such sums shall be charged on and paid out of the Consolidated Fund of India and that the said payments would be exempted from all taxes on income". When such was the sanctity attached to this guarantee, the impugned Amendment completely throwing away those guarantees and assurances to the wind is palpably arbitrary and destructive of the equality clause which is admittedly a basic feature of the Constitution.
1992 in Writ Petition No. 351 of 1972 adopted the arguments of the other counsel and contended that the erstwhile Rulers of the princely states formed a class apart in that there is a real and substantial distinction between them and the citizenry of India. In this context, he referred to Section 87B of the Civil Procedure Code, 1908 which was introduced by way of Amendment after the Constitution came into force in the year 1951 and in order to protect the erstwhile Rulers from frivolous suits filed against them in free India after the Constitution came into force. This, according to learned counsel was legislative recognition in addition to the constitutional guarantee contained in Articles 291 and 362 of the fact that the erstwhile Princes formed a class apart. When such was the position, according to the learned counsel, the impugned Amendment which violates the basic structure of the Constitution is unconstitutional. He cited certain decisions in support of his arguments that the Amendment Act is violative of the essential features contained in Articles 14 and 19(1)(f).
502 Mr. D.D. Thakur, the learned senior counsel appearing for the petitioner in Writ Petition No. 798/92 besides adopting the argument advanced in Writ Petition No. 351/72 added that these two Articles Were not at all amendable on the principle of prohibition, against impairment of the contract obligations, a principle recopised in Section 10, Article 1 of the Constitution of the United States of America. The same principle is incorporated in the Indian Constitution in the shape of Articles 362 and 291. According to the learned counsel, the impugned Amendment Act is an ugly epitome of immorality perpetrated by the Indian Parliament, that, too, in the exercise of its constituent powers and the said Amendment Act constitutes an unholy assault on the spirit which is impermissible and that the principle of justice, fairness and reasonableness are beyond the amending powers of the Parliament. He further stated that the equality clause as interpreted by this Court in various decisions is the most important and indispensable feature of the Constitution and destruction thereof will amount to changing the basic structure of the Constitution, and that the authority of the Parliament to amend the Constitution under Article 368 could be exercised only if the Amendment in the Constitution is justifiable and necessitated because of the socioeconomic reasons broadly referred to in the directive principles of the State Policy and that any Amendment unrelated to any genuine compulsion amounts to an abuse of the power and is therefore a fraud on the exercise of power itself.
The learned Attorney General of India with regard to the above pre-Constitutional agreements stated that the history of the developments leading to the merger agreements and the framing of the Constitution clearly show that it is really the union of the people of the native States with the people of the erstwhile. British India and the Instruments of Accession were only the basic documents but not the individual agreements with the Rulers and therefore to attribute the agreements entered into by Rulers as a sacrifice by the Rulers is unfounded. Secondly, the nature of the covenants is not that of a contract because a contract is enforceable at law while these covenants were made non-justiciable by the Constitution vide Article 363.
According to him the covenants were political in nature and that no legal ingredients as the basis can be read into these agreements and that the guarantees and assurances embodied in Articles 291 and 362 were guarantees for the payment of privy purses. He has urged that such a guarantee can always be revoked in public interest pursuant to fulfilling, a policy objective or the directive principles of the Constitution. That being 503 so, the theory of sanctity of contract or unamendability of Articles 291 or 362 did not have any foundation. He continues to state that the theory of political justice is also not tenable because political justice means the principle of political equality such as adult suffrage, democratic form of Government etc. In this context, he drew the attention of this Court to a decision in Nawab Usmanali Khan v. Sagarmal, [1965] 3 SCR 201 wherein Bachawat, J speaking for the Bench has held:
"............... the periodical payment of money by the Government to a Ruler of a former Indian State as privy purse on political considerations and under political sanctions and not under a right legally enforceable in any municipal court is strictly to a political pension within the meaning of S. 60(1)(g) of the Code of Civil Procedure . The use of the expression "privy purse" instead of the expression "pension" is due to historical reasons. The privy purse satisfies all the essential characteristics of a political pension." Furhter it has been observed in the above case purse are not liable to attachment or sale in execution of the respondent's decree." Before embarking upon a detailed discussion on the various facets of the contentions-both factual and legal we shall deal with the precursive point with regard to the pre- constitutional Instrument of Accession, the Merger Agreement and the covenants which guaranteed the payment of privy purse and the recognition of personal privileges etc. and which ageements ultimately facilitated the integration of these States with the Dominion of India.
In 1947, India obtained independence and became a Dominion by reason of the Indian; Independence Act of 1947. The suzerainty of the British Crown over the Indian States lapsed at the same time because of Section 7 of that Act.
Immediately after, all but few of the Indian States acceded to the new Dominion by executing Instruments of Accession.
The Instrument of Accession executed by the Rulers provided for the accession of the States to the Dominion of India on three subjects, namely, (1) 504 Defence, (2) External Affairs and (3) Communications, their contents being defined in List I of Schedule VII of the Government of India Act, 1935. This accession did not imply any financial liability on the part of the acceding States.
This accession of the Indian States to the Dominion of India established a new organic relationship between the States and the Government, the significance of which was the foregoing of a constitutional link or relationship between the States and the Dominion of India. The accession of the Indian States to the Dominion of India was the first phase of the process. of fitting them into the constitutional structure of India. The second phase involved a process of two-fold integration, the consolidation of States into sizable administrative units, and their democratization.
Though high walls of political isolation had been raised and buttressed to prevent the infiltration of the urge for freedom and democracy into the Indian States, with the advent of independence, the popular urge in the States for attaining the same measure of freedom as was enjoyed by the people in the Provinces, gained momentum and unleashed strong movements for the transfer of power from the Rulers to the people. On account of various factors working against the machinery for self-sufficient and progressive democratic set-up in the smaller states and the serious threat to law and order in those States, there was an integration of States though not in an uniform pattern in all cases. Firstly, it followed the merger of States in the Provinces geographically contiguous to them. Secondly, there was a conversion of States into Centrally administered areas and thirdly the integration of their territories to create new viable units known as Union of States.
Sardar Vallabhbhai Patel had a long discussion with the Rulers and took a very active role in the integration of the States. As a result of the application of various merger and integration schemes,
(1) 216 States had been merged into Provinces;
(2) 61 States had been taken over as Centrally administered areas; and
(3) 275 States had been integrated in the Union of States. Thus, totally 552 States were affected by the integration schemes.
Reference may be made to
(1) the Report of the Joint Select Committee on Indian Constitutional Reforms (1933-34),
(2) the Report of the Expert Committee headed by Nalini Ranjan Sarkar, published in December 1947,
(3) The Indian States' Finances Enquiry Committee chaired by 505 Sir V.T. Krishnamachari appointed on 22nd October, 1948 the recommendations of which, on further discussions with the representatives of the States and Union of States led to the conclusion that the responsibility for payment of the privy purses fixed under various covenants and agreements should be taken over by the Government and
(4) the Report of the Rau Committee appointed in November 1948 under the chairmanship of Sir B.N. Rau.
Reverting to the cases on hand, Shri Raghunathrao Ganpatrao, the petitioner in Writ Petition No. 351 of 1972 executed a merger agreement as per the form of merger on 19th February 1948 and handed over the administration of the State on 8th March, 1948. The petitioner was entitled to receive annually from the revenues of the States his privy purse of Rs. 49,720 as specified in the Merger Agreement (as amended by an Order of Government of India in 1956) free of taxes besides his personal privileges, rights and the Dominion Government guaranteed the succession according to law and custom of the Gadi of the State and the Raja's personal rights privileges and dignities.
Shri Jaya Chamaraja Wadiyar, father of the petitioner (Sri Srikanta Datta Narasimharaja Wadiyar) in Writ Petition No. 798 of 1992 executed an Instrument of Accession and entered into an Merger Agreement/Treaty on 23rd January, 1950.
Under the merger Agreement, the Maharaja of Mysore was entitled to receive annually for his privy purse the sum of Rs. 26,00,000 (Rupees twenty-six lakhs) free of all taxes w.e.f. 1st April 1950. Article (1) of the said Agreement contained a proviso that the sum of Rs. 26,00,000 was payable only to the then Maharaja of Mysore for his life time and not to his successor for whom a provision would be made subsequently by the Government of India. Besides, the then Maharaja was entitled to the full ownership, use and enjoyment of all his private properties (as distinct from State properties) belonging to him on the date of the agree- ment as specified under clause (1) of Article (2) of the Agreement.
We are not concerned about the particulars of the agreements executed by other Rulers of various States.
While, it was so, in 1950 when the Constitution was enforced, it conferred upon the Rulers the aforesaid guarantees and assurances to privy purse, privileges etc.
under Articles 291, 362 and 366(22) of the Constitution.
Accordingly, Rulers continued to enjoy the said benefits upto 1970.
506 On 14th May, 1970, the Constitution (Twenty-fourth Amendment) Bill, 1970 for abolition of the above said privy purse, privileges etc. conferred under Articles 291, 362 and 366 (22) was introduced in the Lok Sabha by the then Finance Minister, Shri Y.B. Chavan. The Bill contained three caluses and a short statement of Objects and Reasons. The statements reads thus :
"The concept of rulership, with Privy Purses and Special Privileges unrelated to any current functions and social purposes, is incompatible with an egalitarian social order.
Government have, therefore, decided to terminate the Privy Purses and Privileges of the Rulers of former Indian States. Hence this Bill." On 2nd September, 1979, the Bill was voted upon in the Lok Sabha. But on 5th September, 1970, the Rajya Sabha rejected the same since the Bill failed in the Rajya Sabha to reach the requisite majority of not less than two third members present as required by Article 368 and voting. Close on the heels of the said rejection, the President of India purporting to exercise his powers under clause (22) of Article 366 of the Constitution, signed an Order withdrawing recognition of all the Rulers in the country en-masse. A communication to this effect was sent to all the Rulers in India who have been previously recognised as Rulers.
This Presidential Order de-recognising the Rulers was questioned in H.H. Maharajdhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India [1971] 3 SCR 9 by filing Writ Petitions under Articles 32 of the Constitution challenging it as unconstitutional, ultra vires and void.
An eleven-Judges Bench of this Court by its Judgment dated 15th December 1970 struck down the Presidential Order being illegal, ultra vires and inoperative on the ground that it had been made in violation of the powers of the President of India under Article 366(22) of the Constitution and declared that the writ petitioners would be entitled to all their pre-existing rights and privileges including right to privy purses as if the impugned orders therein had not been passed. Here, it may be noted that Mitter and Ray, JJ. gave their dissenting judgment.
Thereupon, the payment of privy purses to the Rulers was restored. Subsequently, Parliament enacted a new Act entitled the Constitution (Twenty-Fourth Amendment) Act, 1971 on receiving the ratification by the 507 Legislature of 11 States. It received the assent of the President on 5th November, 1971. By this amendment Act, clause (4) reading "Nothing in this article shall apply to any amendment of this Constitution made under Article 368" was inserted in Article 13 and Article 368 was renumbered as clause (2). The marginal heading to that article was substituted namely "Power of Parliament to amend the Constitution and procedure therefor" in the place of 'Procedure for amendment of the Constitution. Before re- numbered clause (2), clause (1) was inserted. In the re- numbered clause (2) for the words "it shall be presented to the President for his assent upon such assent being to the Bill" the words "it shall be presented to the President who shall give his assent to the Bill and thereupon" was sub- stituted. After the re-numbered clause (2), clause (3) was inserted, namely 'Nothing in article 13 shall apply to any amendment under this article." It may be recalled that Article 368 was firstly amended by Section 29 of the Constitution (Seventh Amendment) Act, 1956 by omitting the words and letters "specified in Part A and B of the First Schedule' and thereafter by Section 3 of the Constitution (Twenty-Fourth Amendment) Act, 1971. Again by Section 55 of the Constitution (Forty-second Amendment) Act, 1956, clauses (4) and (5) were inserted. But this amendment has been held unconstitutional in Minerva Mills v. Union of India, [1980] 3 SCC 625, holding that Sections 55 of the Forty-second Amendment Act inserting clauses (4) and (5) to Article 368 had transgressed the limits of the amending power of the Parliament which power in Kesavananda Bharati was held not to include the power of damaging the basic features of the Constitution or destroying its basic structure.
The Constitution (Twenty-fifth Amendment) A
