http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 181 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 http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 181 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 http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 181 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- http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 181 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.