Full Judgement
Raghunatharao Ganpatrao Vs. Union of India [1993] INSC 58 (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:
HEAD NOTE:
The Judgments of the Court were delivered by S. RATNAVEL PANDIAN, J. (on behalf of L. M. Sharma, C J., himself and B. P. Jeevan Reddy and S.P. Bharucha, JJ.)- These two writ petitions call in question the constitutional validity of the Constitution (Twenty-sixth Amendment) Act, 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 petitioners 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 Interlocutory Application Nos. 1 to 3 of 1992 in Writ Petition No. 351 of 1972, a synoptical resume of the case as adumbrated in Writ Petition No. 351 of 1972 with the historical background may be stated.
2. The petitioner, Shri Raghunathrao Raja was the co-Ruler of Indian State of Kurundwad Jr. which was prior to August 15, 1947 a sovereign State in treaty relationship with, and under the suzerainty of the British Crown.
3. 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 August 15, 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 February 19, 1948. Then the administration of the State of the petitioner was handed over on March 8, 1948.
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4. The case of the petitioner is that under the Merger Agreement he was entitled to receive annually from the revenues of the State his privy purse as specified in the Merger Agreement (as amended by an order of Government of India in 1956) free of taxes, besides reserving his personal rights, privileges and dignities.
5.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 October 13, 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. Amendments 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 the Government of India. Thereafter, the Constituent Assembly passed and adopted the Constitution.
According to the petitioner, it was only on the basis of the Constituent Assembly's acceptance of the provisions of Articles 291, 362 and clause (22) of Article 366 that the Rulers adopted the Constitution of India in relation to their States. After the commencement of the Constitution of India and in pursuance of Article 366(22) thereof the petitioner was recognised as the Ruler of the Kurundwad State with effect from January 26, 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. While it was so, the Parliament enacted new Acts - namely, the Constitution (Twenty-fourth Amendment) Act, 1971, the Constitution (Twenty-fifth Amendment) Act, 1971 and the Constitution (Twenty-sixth Amendment) Act, 1971, the last of 199 which received the assent of the President on December 28, 1971. By this Act, Articles 291 and 362 of the Constitution were repealed and a new Article 363-A was inserted, resulting in depriving the Rulers of the recognition already accorded to them and declaring the abolition of the privy purse and extinguishing their rights and obligations in respect of privy purses and new clause (22) to Article 366 was substituted. Therefore, the petitioner is now challenging the impugned Amendment Act as unconstitutional and violative of the fundamental rights of the petitioner guaranteed under Articles 14, 19(1)(f), 21 and 31 (1) and (2) of the Constitution.
6. In this writ petition, I.A. Nos. 1 to 3 of 1992 have been filed by Smt Kamakshidevi Yavaru, Smt Vishalakshideviyaru and Smt Indrakshi Devi, daughters of late Maharaja of Mysore.
7. The petitioner in Writ Petition No. 798 of 1992 is the successor to the late His Highness Shri Jaya Chamaraja Wadiyar, Ruler of Mysore who has ruled the State of Mysore from September 8, 1940 onwards until January 23, 1950 when the Treaty/Agreement was made between the Government of India and His Highness the Maharaja of Mysore. This petitioner also challenges the Constitution (Twenty-sixth Amendment) Act, 1971 on the same grounds as in Writ Petition No. 351 of 1972.
8. Of the various grounds, the most notable is whether the impugned Act is beyond the constituent power of Parliament and whether it has altered, destroyed and damaged the basic structure and essential features of the Constitution. The object of the impugned Act whereby the Parliament has omitted Articles 291, 362, inserted Article 363-A and substituted a fresh clause (22) for the original under Article 366 of the Constitution 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 purses, personal rights, privileges and dignities are 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.
9. 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.
10. 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 Commissioner's provinces under the 200 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 administrative units had emerged. This was a physical or geographical consolidation.
11. 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 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.
12. 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 British India as equal partners in loose federation. When India became independent by the Indian Independence Act, 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.
13. 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.
14. 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 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".
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15. It is appropriate to refer to the speech of Sardar Vallabhbhai Patel made on October 12, 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 pensions of those Rulers who helped them in consolidating their Empire. Need we cavil then at the small purposely use the word small price we have paid for the bloodless revolution which has affected the destinies of millions of our people.... 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 purse are fully implemented. Our failure to do so would be a breach of faith and seriously prejudice the stabilisation of the new order."
16. The constitutional provisions of Articles 291 and 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 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 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 Indian States. In the exercise of the power of Parliament or of the Legislature of a State to make laws or 202 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."
17. 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.
Unamended 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 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." 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 recognised by the President as the Ruler of an Indian State or any person who, at any time before such commencement, was recognised by the President as the successor of such Ruler."
18. 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 of the Constitution (Twenty-sixth Amendment) Act, 1971, was recognised by the President as the Ruler of an Indian State or any person who, at any time before the commencement, was recognised by the President as the successor of such Ruler shall, on and from such commencement, cease to be recognised as such Ruler or the successor of such Ruler;
(b) on and from the 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 Ruler, 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."
19. 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 stabilisation 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 203 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 "guarantee 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 and that the deletion of these articles by the impugned Amendment Act is arbitrary, unreasonable 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.
20. Mr Soli J. Sorabjee, the learned senior counsel in his additional written submissions has further urged that without the cooperation 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 November 26, 1949 would have been basically different and that India i.e. Bharat would have been fundamentally different from the Bharat that came into being.
21. 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 unconstitutional, null, void and violative of Articles 14, 19(1)(g), 21, 31(1) and (2) of the Constitution.
22. Mr Harish Salve, the learned senior counsel contended 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. 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 scheme" 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 the Rulers under those agreements. To highlight the significance of those agreements whereby the Rulers were persuaded to sign the instruments, 204 the statement of Shri V.P. Menon who was closely connected with the annexation of the princely States and the speech of Sardar Vallabhbhai Patel made in the Constituent Assembly were cited.
23.It is further emphasised 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 principles 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. Pattabhi 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.
24.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 finally 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.
25. Mr A.K. Ganguly, the learned senior counsel appearing in I.A. 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 of October 1949, Maharaja of Mysore then issued a proclamation on November 25, 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 the following day, namely, November 26, 1949 the Constituent Assembly adopted the Constitution of India. Thereafter, on January 23, 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 205 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 Article 291(1) reading "[s]uch 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.
26. Mr R.F. Nariman, the learned counsel appearing in I.A. No. 1 of 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 87-B 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).
27. Mr D.D. Thakur, the learned senior counsel appearing for the petitioner in Writ Petition No. 798 of 1992 besides adopting the argument advanced in Writ Petition No. 351 of 1972 added that these two articles were not at all amendable on the principle of prohibition against impairment of the contract obligations, a principle recognised 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 principles 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.
28. The learned Attorney General of India with regard to the above pre-constitution 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 206 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 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. Sagarmal1 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 a political pension within the meaning of Section 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......
Further it has been observed in the above case:
"... it must be held that the amounts of the privy purse are not liable to attachment or sale in execution of the respondent's decree."
29. Before embarking upon a detailed discussion on the various facets of the contentions both factual and legal we shall deal with the recursive point with regard to the pre-constitutional Instruments of Accession, the Merger Agreements and the covenants which guaranteed the payment of privy purse and the recognition of personal privileges etc. and which agreements ultimately facilitated the integration of these States with the Dominion of India.
30. 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 Instruments of Accession executed by the Rulers provided for the accession of the States to the Dominion of India on three subjects, namely, (1) Defence, (2) External Affairs and (3) 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.
31. 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 forging 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 1 (1965) 3 SCR 201 : AIR 1965 SC 1798 207 into the constitutional structure of India. The second phase involved a process of twofold integration, the consolidation of States into sizeable 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 a 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.
32. 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.
33. 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 Sir T.T.
Krishnamachari appointed on October 22, 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.
34. 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 February 19, 1948 and handed over the administration of the State on March 8, 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 Gaddi of the State and the Raja's personal rights, privileges and dignities.
35. Shri Jaya Chamaraja Wadiyar, father of the petitioner (Shri Srikanta Datta Narasimharaja Wadiyar) in Writ Petition No. 798 of 1992 executed an Instrument of Accession and entered into a Merger Agreement/Treaty on January 23, 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. April 1, 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 lifetime and not to his successor for whom a provision would be made subsequently by the Government of India.
208 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 Agreement as specified under clause (1) of Article (2) of the Agreement.
36. We are not concerned about the particulars of the agreements executed by other Rulers of various States.
37. 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 up to 1970.
38. On May 14, 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 clauses and a short Statement of Objects and Reasons. The statement reads thus:
"The concept of ruler-ship, 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 thi s Bill."
39. On September 2, 1970 the Bill was voted upon in the Lok Sabha. But on September 5, 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 had been previously recognised as Rulers.
40. This Presidential Order de-recognising the Rulers was questioned in Madhav Rao Scindia v. Union of India2 by filing writ petitions under Article 32 of the Constitution challenging it as unconstitutional, ultra vires and void.
An eleven-Judge Bench of this Court by its judgment dated December 15, 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.
41. 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 legislatures of II States. It received the assent of the President on November 5, 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 2 (197 1) 1 SCC 85 : (1971) 3 SCR 9 209 and procedure therefore" in the place of "Procedure for amendment of the Constitution". Before renumbered clause (2), clause (1) was inserted. In the renumbered clause (2) for the words "it shall be presented to the President for his assent upon such assent being given to the Bill", the words "it shall be presented to the President who shall give his assent to the Bill and thereupon" was substituted.
After the renumbered clause (2), clause (3) was inserted, namely: "Nothing in Article 13 shall apply to any amendment made under this article".
42. 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 Parts 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 Ltd. v. Union of India3 holding that Section 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 Bharati4 was held not to include the power of damaging the basic features of the Constitution or destroying its basic structure.
43. The Constitution (Twenty-fifth Amendment) Act, 1971 by substituting a new clause to clause (2) of Article 31 and inserting clause (2-B) after clause (2A) came into force.
By the same Amendment Act, Article 31-C was inserted after Article 31-B entitled "Saving of laws giving effect to certain directive principles". It is significant to note that Article 31 was omitted by the Constitution (Forty- fourth Amendment) Act, 1978 w.e.f. June 20, 1979.
44. The impugned Constitution (Twenty-sixth) Amendment, 1971 Was passed by the Parliament and it received the assent of the President on December 28, 1971. By this Act, Articles 291 and 362 were omitted and Article 363-A was inserted under the title "Recognition granted to Rulers of Indian States to cease and privy purses to be abolished".
By the same Amendment Act, an amended new clause was substituted to the then existing clause (22). We have already reproduced Articles 291, 362 and the past and present clause (22) of Article 366.
45. After the impugned Twenty-sixth Amendment was brought into force w.e.f. December 28, 1971, the present Writ Petition No. 351 of 1972 was filed on August 24, 1972 for declarations that the Twenty-fourth, Twenty-fifth and Twenty-sixth Amendment Acts of 1971 are unconstitutional, invalid, ultra vires, null and void and that the petitioner continues to be entitled to the privy purse and to personal rights, privileges as a Ruler and for a writ or order directing the respondent to continue to pay privy purse to the petitioner. Another Writ Petition No. 352 of 1972 was filed by H.H. Nawab Mohammed Iftikhar Ali Khan of Malerkotla seeking same relief as in Writ Petition No. 351 of 1972.
46. It may be noted when Writ Petition Nos. 351 and 352 challenging the Twenty-fourth, Twenty-fifth and Twenty-sixth Amendment Acts were filed in this Court, Writ Petition No. 135 of 1970 entitled Kesavananda Bharati v. State of Kerala4 was pending before this Court.
3 (1980) 3 SCC 625 : (1981) 1 SCR 206 4 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 210
47. When both these writ petitions i.e. W.P. Nos. 351 and 352 of 1972 were listed together, on August 28, 1972, this Court passed the following order:
"Upon hearing for the Parties, the Court directed issue of Rule Nisi and directed these petitions to be heard along with Writ Petition No. 135 of 1970. Respondents granted time till end of September 1972 to file counter affidavit to the writ petitions. Notice of the writ petitions shall issue to the Advocates-General of all the States. All the writ petitions to be heard on October 23, 1972. Written arguments dispensed with."
48. A thirteen-Judge Bench of this Court in Kesavananda Bharati v. State of Kerala4 heard some writ petitions along with these two writ petitions and gave its conclusions thus:
"The view by the majority in these writ petitions is as follows:
(1) Golak Nath case5 is overruled;
(2) Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution;
(3) The Constitution (Twenty-fourth Amendment) Act, 1971 is valid;
(4) Section 2(a) and (b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid;
(5) The first part of Section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. The second part, namely, 'and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy' is invalid.
(6) The Constitution (Twenty-ninth Amendment) Act, 1971 is valid.
The Constitution Bench will determine the validity of the Constitution (Twenty-sixth Amendment) Act, 1971 in accordance with law.
The cases are remitted to the Constitution Bench for disposal in accordance with law.
There will be no order as to costs incurred up to this stage."
49. In pursuance of the said order, Writ Petition No. 351 of 1972 is now before this Constitution Bench for determination of the constitutional validity of the Twenty- sixth Amendment Act in accordance with the law laid down in Kesavananda Bharati4.
50. Since the constitutional validity of the same Twenty- sixth Amendment Act is involved in Writ Petition No. 798 of 1992, it is also before this Bench along with Writ Petition No. 351 of 1972.
51. As regards the in built separate mechanism for amending the Constitution, Dr Ambedkar said, "One can, therefore, safely say that the Indian federation will not suffer from the faults of rigidity or legalism. Its distinguishing feature is that it is a flexible federation." Dr Where in his Modem Constitutions has commended that it "strikes a good balance by protecting the rights of the State while leaving remainder of the Constitution easy to amend". Our Constitution is an amendable one. In fact, till now seventy-two amendments have been brought about, the first of which being in 1951 i.e. within 15 months of the working of the Constitution.
5 Golak Nath v. State of Punjab, (1967) 2 SCR 762: AIR 1967 SC 1643 211
52. The first amendment was challenged in Sankari Prasad Singh Deo v. Union of India6 but the Supreme Court unanimously upheld the validity of the Amendment.
53. A brief note as regards the circumstances which necessitated the Twenty-fourth Amendment being brought may be recapitulated.
54. The Constitution Bench of this Court in Sajjan Singh v. State of Rajasthan7 wherein the constitutional validity of the Constitution (Seventeenth Amendment) Act, 1964 was challenged, reiterated the views expressed in Sankari Prasad6 by a majority of three Judges although two Judges gave their separate dissenting judgments. One of the dissenting Judges, Hidayatullah, J. stated that the "Constitution gives so many assurances in Part III that it would be difficult to think that they were the playthings of a special majority". The other dissenting Judge, Mudholkar, J. took the view that the word "law" in Article 13 included a constitutional amendment under Article 368 and that, therefore, the fundamental rights part was unalterable. In his view, Article 13 qualified the amending power found in Article 368 making the fundamental rights part of India's Constitution unamendable.
55. The concerns of the two dissenting learned Judges came before an eleven-Judge Bench of this Court in Golak Nath v. State of Punjab involving another round of attack on three Amendment Acts, namely, the First, Fourth and Seventeenth Amendment Acts. This Court by a ratio of six to five held that the' Parliament had no power "to amend any of the provisions of Part III so as to take away or abridge the fundamental rights enshrined in that Part. The decision In Golak Nath5 was rendered in 1967, but one of the amendments it would invalidate dated from 1951, another from 1955 and another from 1964. Therefore, this Court in order to avoid any catastrophe that would have ensued in the social and economic relations, had the Court ruled that the amendments were void ab initio, relied on American cases and adopted the doctrine of prospective overruling which was construed to enable the Court to reverse its prior decisions, to continue the validity of the three amendments in issue, and to declare that after judgment the Indian Parliament would have no power to mend or abridge any of the fundamental rights. Therefore, intending to override the ruling in Golak Nath case-' the Twenty-fourth (Amendment) Act, 1971 was brought, as reflected from the Objects and Reasons of the Twenty-Fourth Amendment, which read thus:
"Objects and Reasons In the Golak Nath case5 the Supreme Court reversed, by a narrow majority, its own earlier decisions upholding the power of Parliament to amend all parts of the Constitution including Part III relating to fundamental rights. The result of the judgment was that Parliament was considered to have no power to take away or curtail any of the fundamental rights even if became necessary to do so for the attainment of the objectives set out in the Preamble to the Constitution. The Act, therefore, amends the Constitution to provide expressly the Parliament power to amend any part of the Constitution." 1952 SCR 89: AIR 1951 SC 458 (1965) 1 SCR 933 : AIR 1965 SC 845 212
56. Thereafter, the Twenty-fifth Amendment Act was brought in 1971 which amended the Constitution to surmount the difficulties placed in the way of giving effect to the Directive Principles of State Policy by the interpretation of Article 31 of the Constitution in Rustom Cavasjee Cooper v. Union of India8, The said Act substituted clause (2) and inserted clause (2-B) to Article 31 and added Article 31-C.
These amendment Acts, namely, Twenty-fourth and Twenty-fifth besides Twenty-ninth Amendment Act and the continuing validity of the dictum laid down in Golak Nath case5 were the subjects for decision in Kesavananda Bharati4. Though Writ Petition No. 351 of 1972 challenging the Twenty-fourth, Twenty-fifth and Twenty-sixth Amendment Act was also listed along with other writ petitions in Kesavananda Bharati4 the constitutional validity of the Twenty-sixth Amendment was left over for determination by a Constitution Bench.
57. We shall now proceed to examine the constitutional validity of the impugned Amendment Act.
58. The question whether Article 291 is a provision related to the Covenants and Agreements entered into between the Rulers of the States and Indian Dominion and is that in reality and substance a provision on the subject-matter of covenants and agreements were considered by Hidayatullah, C.J. in his separate concurring judgment in Madhav Rao2 and they are answered in the following terms: (SCC p. 141, para 76) "The article when carefully analysed leads to these conclusions: 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 have occasion to show that the Princes had guaranteed to themselves their Privy Purses free of all taxes. The Dominion Government had guaranteed on assured the same freedom. The Constitution limits the freedom to taxes on income and creates a charge on the Consolidated Fund. There were the guarantees as in the Merger Agreements of Bilaspur and Bhopal (quote( earlier) which are ignored by the article. The guarantee of the Dominion Government 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 and to make them free of taxes or income." (emphasis supplied'
59. Shah, J. speaking for the majority with reference to the covenants and agreements made the following observation:
"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 constitutional mandate under Article 291. The source of the obligation was in Article 291, and not in the covenants and the agreements." (emphasis supplied
60. So far as Article 362 is concerned, it has been held by majority of the Judges that the said article is plainly a provision relating to covenants within the meaning of Article 363 and a claim to enforce the rights, privileges and dignities 8 (1970) 1 SCC 248 : (1970) 3 SCR 530 213 under the covenants therefore, are barred by the first limb of Article 363 and a claim to enforce the recognition of rights and privileges under Article 362 are barred under the second limb of Article 363 and that the jurisdiction of the courts however, is not excluded where the relief claimed is founded on a statutory provision enacted to give effect to personal rights under Article 362.
61. The important question now that arises for our consideration is whether the Twenty-sixth Amendment Act, which completely omitted Articles 291 and 362 and inserted a new Article 363-A and also substituted a new clause (22) in place of its original clause of Article 366, has destroyed, damaged and altered the basic structure of the Constitution.
62. The Constitution remains at the apex because it is the supreme law. The question is what is the power of the Parliament to amend the Constitution either by abridging or omitting any existing article or adding any new article or clause or substituting any new clause for its original clause. To answer this most important question, some supplementary questions have to be examined, those being as to what is the parameter or the mode by which an amendment can be brought and what are the limitations either express or implied on the amending power which inhere in the Constitution itself including its Preamble.
63. Before, we proceed further, let us understand what is meant by an ,amendment'. The word has Latin origin;
'emenders' to amend means to correct. Walter F. Murphy in Constitutions, Constitutionalism and Democracy while explaining what 'amendment' means has stated:
"Thus an amendment corrects errors of commission or omission, modifies the system without fundamentally changing its nature that is, an amendment operates within the theoretical parameters of the existing Constitution."
64. In our Constitution, the expression 'amendment of the Constitution' is not defined. However, Part XX which contains one article viz. Article 368 provides a special procedure for amending certain provisions of the Constitution under the heading "Amendment of the Constitution".
65. It is not necessary for us to deal with the different provisions of the Constitution and the procedures for amendment as laid down by the Constitution because the authority of the Parliament in bringing about the impugned Amendment Act is not under challenge.
66. After the judgment of Madhav Rao Scindia2 the Twenty- sixth Amendment was brought to overcome the effect of the judgment. The Objects and Reasons of the Twenty-sixth Amendment makes the position clear, which read thus:
"The concept of ruler-ship, with privy purses and special privileges unrelated to any current functions and social purposes, was incompatible with an egalitarian social order.
Government, therefore, decided to terminate the privy purses and privileges of the Ruler of former Indian States. It was necessary for this purpose, apart from amending the relevant provisions of the Constitution to insert a new Article therein so as to terminate expressly the recognition already granted to such Rulers and to abolish privy purses and extinguish all rights, liabilities and obligations in respect of privy purses. Hence this Act." 214
67. We shall now deal with the dictum laid down in Kesavananda Bharati as regards the power vested in the Parliament and the limitations either express or implied or inherent therefore to amend the Constitution.
68. In Kesavananda Bharati4 the Supreme Court upheld the validity of the Twenty-fourth Amendment. Of the thirteen Judges, Shelat, Hegde, Grover Jaganmohan Reddy and Mukherjea, JJ. observed that the Twenty-fourth Amendment did no more than clarify in express language that which was implicit in the unamended Article 368 and it did not and could not add to the power originally conferred there under.
Ray, J. said that the Twenty-fourth Amendment made explicit what the judgment in Sankari Prasad6 and the majority judgment in Sajjan Singh7 and the dissenting judgment in Golak Nath5 said, namely, that Parliament has the constituent power to amend the Constitution. Sikri, C.J. and Ray, Palekar, Khanna, Beg, Dwivedi, JJ. who also held the Twenty-fourth Amendment valid, said that under Article 368 Parliament can now amend every article of the Constitution.
69. According to Khanna, J. the non obstacle clause (1) has been inserted in the article to emphasise the fact that the power exercised under that article is constituent power, not subject to the other provisions of the Constitution and embraces within itself addition, variation and repeal of any provision of the Constitution. Mathew, J. put it succinctly stating that the Twenty-fourth Amendment Act did not add anything to the content of Article 368 as it stood before the amendment, that it is declaratory in character except as regards the compulsory nature of the assent of the President to a Bill for amendment Dwivedi, J. has explicitly stated that except as regards the assent of the President to the Bill, everything else in the Twenty-fourth Amendment was already there in the unamended Article 368 and that this amendment is really declaratory in nature and removes doubts cast on the amending power by the majority judgment in Golak Nath5. Sikri, C.J. elaborating the above theme has observed that the Twenty-fourth Amendment, insofar as it transfers power to amend the Constitution from the residuary entry (Entry 97, List 1) or from Article 248 of the Constitution to Article 368 is valid; in other words, Article 368 of the Constitution as now amended by the Twenty-fourth Amendment Act deals not only with the procedure for amendment but also confers express power on Parliament to amend the Constitution. He has also further held that under Article 368, Parliament can now amend every Article of the Constitution as long as the result is within the limits laid down.
70. Thus the Constitutional questions that arose in Kesavananda Bharat case4 were scrupulously and conscientiously examined in detail on varied an( varying topics from different angles such as 'the basic elements of the Constitutional structure', 'the basic structure of the Constitution', 'the essential and non-essential features of the Constitution', 'the plenary power of amendment' etc.
etc. and finally by majority it is laid down that the power of amendment is plenary and it includes within itself the power to add, alter on 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.
215
71. We shall now examine the various arguments made on behalf of the petitioners and the interveners grouping all those submissions under separate and distinct topics.
72. One of the points urged in common before us is that the framers of the Constitution in their wisdom had thought it fit to incorpor
