Holding

The Constitution (Twenty‑sixth Amendment) Act, 1971 is valid in its entirety and does not affect the basic structure of the Constitution.

Summary

The petitioners, former rulers of Indian princely states, challenged the Constitution (Twenty‑sixth Amendment) Act, 1971 which repealed Articles 291 and 362 and amended Article 366(22), thereby abolishing privy purses and royal privileges. They argued that the amendment violated the basic structure doctrine, exceeded Parliament’s power under Article 368, and infringed fundamental rights under Articles 14, 19(1)(g), 21 and 31. The Court examined the scope of the amending power, the concept of basic structure, and the nature of the privy‑purse guarantees, concluding that the amendment did not alter the Constitution’s identity or its essential features. Consequently, the amendment was held valid and the writ petitions were dismissed.

Issues considered

The Constitution (Twenty‑sixth Amendment) Act, 1971 is within Parliament’s power under Article 368.
Whether the repeal of Articles 291, 362 and amendment of Article 366(22) damages the basic structure or essential features of the Constitution.
The amendment’s compatibility with fundamental rights: Articles 14, 19(1)(g), 21 and 31(1)(2).
Whether the privy‑purse guarantees constitute a contract or a basic feature that is unamendable.
The effect of the amendment on the doctrine of political justice and equality.

Legislation cited

Constitution (Forty‑fourth Amendment) Act, 1978
Constitution (Forty‑second Amendment) Act, 1976
Constitution of Indias. Article 14, s. Article 19(1)(g), s. Article 21, s. Article 291, s. Article 31(1), s. Article 31(2), s. Article 362, s. Article 363, s. Article 363A, s. Article 366(22), s. Article 368
Constitution (Seventeenth Amendment) Act, 1964
Constitution (Seventh Amendment) Act, 1956
Constitution (Twenty-fifth Amendment) Act, 1971
Constitution (Twenty‑fourth Amendment) Act, 1971
Constitution (Twenty‑sixth Amendment) Act, 1971

Subjects

basic structure doctrineconstitutional amendmentprivy purseArticles 291, 362, 366fundamental rightsequality clauseparliamentary powerArticle 368political justicecontractual obligations

Judgment

A RAGHUNATHRAO GANPATRAO ETC. ETC.
)
v.
UNION OF INDIA
>..
l::
FEBRUARY 4, 1993 ~
j
B [L.M. SHARMA, CJ., S. RATNAVEL PANDIAN, B.P. JEEVAN
REDDY, S.P. BHARUCHA AND S. MOHAN, JJ.]

..a.: i'
Constitution of India, 1950-,4rticles 291, 362, 366 (22) and 363-A-
Constitutio:1 (Twenty-Sixth Amendment) Act, 1971-Constitutional validity
of-Whether violates basic structure and essential features of the Constitution.
c
Constitution of India 1951>-Article 368--Power of amendment-
Limitations.
,.
Constitution of India, 1951>-Articles 14, 19(1)(/), 21, 31( 1), (2), 291,
D 362, 368-Constitution (Twenty-Sixth Amendment) Act, 1971-Abolition of
..;t r
privy purses-Whether violative of Article 14-W/tether personality of Con-
stitution c/1anged--Wliether theory of political justice tenable.
'
Constitution of India, 1951>-Articles 291, 362, 368-Constitution
(Twenty-Sixth Amendment) Act, 1971-Abolition of privy purses-Whether
E Articles 29 I, 362 organic unity of India facilitated. ~

Constitution of India, 1951>-Articles 291, 362, 368-Constituti011
(Twenty-Sixth Amendment) Act, 1971-Abolition of privy purses-Will of tl1e
people expressed through Parliament-Court's duty whether to concern with
moral aspect of amendments.
F
WRIT PETITION NO. 351 OF 1992
-{
,..
The petitioner was a Co-Ruler of an Ex-Indian State of Kurundwad.
His Co-Ruler, on behalfof both, executed an instrument of accession under
•
Section 5 of the Government of India Act, 1935 and their State became a lc
G '
part of the Dominion of India. A Merger Agreement was executed on the
'll
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.
.....
I
1
H The case of the petitioner was that uuder the Merger Agreement he
480

~
RAGHUNATII v. U.0.1. 481
was entitled to receive annually from the revenues or the State his privy A
purse as specified in the Merger Agreement.

Certain groups of States entered into covenants for the estab·
llshment of United States .comprising the territories of the covenanting
States and Talukas with a common executive, legislature and judiciary.
B
On 13th October, 1949 the Constituent Assembly of India adopted
i11ter·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
c
Constitution drafted by the Constituent Assembly or India.

In pursuance of Article 366(22) of the Constitution or 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, D
privileges, titles and dignities issued by Merger Agreement, and by the
Constitution of India.

The Parliament enacted the Constitution (Twenty-Sixth Amend·
meot) 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
E
substituted. It resulted in depriving the Rulers or their recognition already
accorded to them and declaring the aboliti.on of the privy purse and
extinguishing their rights and obligation in respect of privy purse.

The petitioner filed the writ petition challenging the impugned F
Amendment Act as unconstitutional and violative and the fundamental
rights of the petitioner guaranteed under Articles 14, 19(1)(1), 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 ¥aharaja of Mysore. G
WRIT PETITION NO. 798 OF 1992

The petitioner was the successor to the Ruler of Mysore also chal·
leuged the Constitution (26th Amendment) Act or 1971 OD the same
grounds as in Writ Petition No. 351/72. H
482 SUPREME COURT REPORTS (1993) 1 S.C.R.
A 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 djtmaged
B and demolished the very basic structure of the Constitution; "that the
covenants entered into were in the nature of contracts which was guaran·
teed constitutionally and affirmed by making the privy purse an expendi·
ture charged under the Consolidated Fund of India; t~at the deletion of ,I;
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
C the privy purses which were given ti(them as consideration for surrender-
ing all their sovereign rights and contributing to the uuity 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
D 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
(1\venty-Sixth Amendment) Act was unconstitutional, null, void and viola·
tive 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
E 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.

F The petitioner in I.A. No. 3 submitted that the fact that the expres·
sion "guarantees" occurring both in Article 32 and Article 291 besides in
Article 362 ('guarantee') clearly de111oostrated the mind of the Constitu-
tion-makers that they intended ilie"il.td'provisions of Articles 291 and 362
to he the basic and essential structure of the Constitution.

G The petitioner in I.A. No. l contended that the erstwhile rulers of the
princely States formed a class apart and there was real and substantial
distinction between them and the citlzenary of India; that the la)lllllled
amendmellt )'hich violated the basic structure of'. the C011Stitlltion was
unconstltutiODal; that the-Amendment Act was violative of the essential
H features contained in Articles 14 and 19(1)(1).
RAGHUNATH v. U.0.1. 483
The petitioner in W.P. No. 798192 added that the two Articles were A
not at all amendable on the principle or prohibition against impairment
or 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 impermissible and
B
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 indispen-
sable feature of the Constitution and destruction thereof would amount to
changing the basic structure or the Constitution and that the authority or
the Parliament to amend the Constitution under Article 368 could be C
exercised only if the Amendment in the Constitution was justifiable and
necessitated because of the soci~onomic reasons broadly referred to in
the directive principles of the State Policy and that aay Amendment
unrelated to any gmnlne compulsion amounts to an abuse of the power
).. and was therefore a fraud on the exercise of power itself. D

Respondent Union of India contended that the Instruments or Ac-
cession 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 or the
covenants was not that of a contract because a contract was enforceable E
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 ingredi.ents 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 F
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 d.id 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 G
adult slllrrage, democratic form of Government etc.

Dlsinlssing the Writ Petitions and the I.As~ this court,

HELD : (By Full Court) ; The Constitution (Twenty-Sixth Amend-
ment) Act of 1971 Is valid In its entirety. [529GI H
484 SUPREME COURT REPORTS [1993] 1 S.C.R.
A Per S. Ratnavel Pandian, J. on his behalf and on behalf of the Chief
Justice of India, B.P. Jeevan Reddy and S.P. Barucha, JI.:

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
B 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
C 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, alter or repeal the various Articles of the Constitu-
D lion inclnding 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]
E 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
F 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,
etfective 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
G result in abrogation or destruction of its basic structure or loss of its original
identity and character and render the Constitution unworkable. (5198-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
H or transgresses the limitations put on the am•nding power because there
RAGHUNATH v. U.0.1. 485
is no touchstone outside the Constitution by which the validity of the exercise A
A. 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) B
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 C
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 D
democratic form of Government and right to participati.on 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)

1.119. There is no question of change of identity on account of the E
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. [527G]
F
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 G
regionalism, communalism and linguism, ii 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 lirst irrespective of other basis. In this
view, any measure at bringing about equality should be welcome. There is
DO legitimacy In -the argument in favour of continuance or princely H
486 SUPREME COURT REPORTS [1993] 1 S.C.R.
A 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 i.n 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
B transcending all the regional, linguistic, religious and other diversities
which are the bed-rock on which the constitutional fabric bas been raised.
The distinction between the erstwhile Rulers and the citizenary of India ;lt
has to be put an end to so as to have a common brotherhood. [529E·F]

C 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 Sripadaga/avarn v. State of Kera/a
and Another, [1973] 4 SCC 225; Shankari Prasad v. Union of India, [1952)
SCR 89; Sajjan Singh v. State of Rajasthan, [1965) l SCR 933 at 966; Golak ~
D 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 Bliim Singhji v. Union of India and Others, [1981] l SCC 166 at
212; Madliav Rao v. Union, (1971) 3 SCR 9 at 74 and 83; Indira Nehrn
E Gandhi v. Raj Narain, [1975] Suppl. SCC l; Sanjeev Coke Manufacturing ·~
Company v. Bharat Cooking Coal Ltd., [1983) l 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 Amhority
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]
F 2 SCR 348; Krishna Kumar v. Union of India, (1990] 4 SCC 207; Md. Usman
& Ors. v. State of Andhara Pradesh and Ors., [l97li Suppl. SCR 549; Ramesh -{
Prasad Singh v. State of Bihar & Ors., [1978] l SCR 787, referred to.

Report of the Joint Select Committee Oil Indian Constitutional Refonns
G (1933-34); Report of the Expert Committee headed by Nalini Ranjan Sarlcar
(published in December, 1947), Report of the Indian States' Finances
Enquiry Committee, chaired by Sir V.T. Krisbanamac.hary (appointed
on 22nd October, 1948). Report of the Rau Committee chaired by Sir . >-
B.N. Rau (appointed in November, 1948); Dias: Jurisprndence, Fifth
Edition, at pages 355 and 356; Bentham : Theory of Legislation, Chapter
H XII at page 60, referred to.
RAGHUNATH v. U.0.1. 487
Per S. Mohan, J. (Concurring) A
1.01. One of the tests of identifying the basic feature is, whether the
ide.ntity 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. B
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. [5378)

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 C
integral part of the Constitution. [5378)

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, D
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 E
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-EJ F

1.(16. If the 26th amendment aims to establish an egalitarian society
which is in consonance with the glorious preamble, bow 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 G
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. [559G-HJ

1.07. To determine whether these provisions constitute basic struc- H
488 SUPREME COURT REPORTS (1993) 1 S.C.R.
A lure 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 nullifica-
B tion 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
C as laid down in Kesavananda'i case but it is too far fetched aclaim lo 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
D 362 facilitated the organic unity of India is unacceptable. [562E-FJ

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)
E 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]

Viremira Singh and Others v. State of Ullar Pradesh, AIR 1954 SC 447
F at 454; H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur &
Ors. v. Union of India, (1971) 3 SCR 9; His Holiness Kesavananda Bharati
Sripadagalavam v. State of Kera/a, (1973) Supp. SCR l; Waman Rao and -{
Others v. Union of India and others, (1980] 3 SCC 587 at 588-89; Maharao
Sahib Shri Bhim Singh Ji v. Union of India & Ors., (1981) 1 SCC 166 at 212;
Indira Nehrn Gandhi v. Raj Narain, [1975) Supp. SCC 1 at 252; Ajay Hasia
G v. Khalid Mujib Sehravardi, (1981) 1 SCC 722; Minerva Mills Ltd. v. Union
of India & Ors., (1981] 1 SCR 206 & {1986) 3 SCR 718; O.N. Mohindroo
v. District Judge, Delhi, (1971] (III) SCC 9; Mohan/a/ Jain v. His Holiness
Maharaja Shri Swai Man Singh Ji, (1962) 1 SCR 702; Ramesh Prasad Singh
v. State of Bi/Jar& Ors., (1978] l SCR 787 at 793; Nagpur Improvement Trnst
H & _Another v. Vitha/ Rao & Ors., [1973) 3 SCR 39; Usman Ali Khan v. Sagar
,..
RAGHUNATH v. U.0.1. [PANDIAN, J.) 489
Mal, (1965) 3 SCR 201; Golak Nath v. State of Punjab, (1967) 2 SCR 762; A
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' : Sy B. Shiva Rao at page 520;
Robert S. Peck: 'The Bill of Rights & the Politics of Interpretation", at page B
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. 351n2 and C
798 of 1992.

{Under Article 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. D
Dadachandj~ 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, Picha~ D. Goburdhan, Santokh Singh, Ms. M. Karanjawaia,
Anip Sachthey and G. Prakash for the appearing Parties.
E
The Judgments of the Court were delivered by

S. RATNAVEL PANDIAN, J. These two Writ Petitions call in ques-
tion the constitutional validity of the Constitution (Twenty-sixth Amend-
ment) Act of 1971 inter-a/ia, on the ground that it violates the basic F
structure and essential features of the Constitution of India and is, there-
fore, outside the scope and ambit of constituent powers of the Parliament
to amend the Constitution as provided under Article 368 of the Constitu-
tion. In addition, certain directions or suitable orders are sought for
declaring that the petitioner continue to be the Rulers or the 'Successor G
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 bas led to the filing of these two Writ
Petitions and the Interloculatory Applications 1 to 3 of 1992 in Writ H
490 SUPREME COURT REPORTS (1993) 1 S.C.R.
A Petition No. 351 of 1972, a synoptical resume of the case as adumbrated
in Writ Petition No. 351172 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 Britisb
B 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
C 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
D 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
E 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
F 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 ahy 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
G 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
H was entitled to receive annually from the revenues of the State his privy
RAGHUNATii v. U.0.1. (PANDIAN, J.) 491
purse as specified in the Merger Agreement (as amended by an order of A
Government of India in 1956) free of tID<es, 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 B
Talukas with a common executive, legislature and judiciary. The covenants
inter-a/ia 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 frameworl< of convenants and
of the Constitution of India. Each of the covenants was concurred in by C
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 cif India. It was decided in consultation with the Government D
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. E
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 F
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 G
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 H
492 SUPREME COURT Rfl"<JP:fS (1993] 1 S.C.R.
A basis of the Constituent Assmebly's acceptance of the provisions of Articles
291, 362 and clause (22} of Article 366 the Rulers adopted the Constitution )..
of India in relation to their States. After the commencement of the Con-
stitution of India and in pursuance of Article 366 (22} thereof the petitioner
was recognized as the ruler of the Kurundwad State with effect from 26th
B 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. While it was so, the Parliament e~acted a new Act- namely, the
Constitution (Twenty-Fourth Amendment) ACt of 1971, the Constitution °"'
(Twenty-Fifth Amendment) Act of 1971 and the Constitution (Twenty-
Sixth Amendment} Act of 1971, the last of which received the assent of the
C President on the 28th December 1971. By this Act Articles 291 and 362 of
the Constitution were repelled and a new Article 363-A was inserted,
resulting 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 and new clause (22} to
D 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}(!),
21 and 31 (1) and (2) of the Constitution.

In this Writ Petition, I.A. Nos. 1 to 3 of 1992 have been filed by Smt.
E Kamakshidevi Yavaru, Smt. Vishalakshideviya(u and Smt. Inrakshi Devi,
daughters of late Maharaja of Mysore.

The petitioner in Writ Petition No. 798/92 is the successor to the late
His Highness Sri Jaya Chamaraja Wadiyar, Ruler of Mysore who had ruled
F the State of Mysore from 8th September, 1940 onwards until 23rd January,
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 (26th Amendment) Act of 1971 on the same
grounds as in Writ Petition No. 351n2.

G 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 Parlia-
ment has omitted Articles 291, 362, inserted Article 363-A and substituted
H a fresh clause (22) for the orig!nal under Article 366 of the Constitution
RAGHUNATH v. U.0.1. [PANDIAN, J.) 493
was to terminate the privy purses and privileges of the former Indian A
Rulers and to terminate expressly the recognition already granted to them
under those two deleted Articles. According to the learned counsel ap-
pearing 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 ~d dignities is in violent breach of the power of B
Parliament acting as a constituent body under Article 368 of the Constitu-
tion inasmuch as it not only sought to amend the Constitutiton 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 c
leading to the transfer of power and the integration of )Jldian 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.
D
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 E
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 F
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 con-
solidation.

The next step was to fit all these units into a common administrative G
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 neighbouring provinces and in some respects were
ahead of them. But there were smaller States where, owing mainly to the H
494 SUPREME COURT REPORTS (1993) 1 S.C.R.
A 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
B 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
C 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,
D External Affairs and Communications. The Rulers immediately after inde-
pendence 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
E 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
F 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 con-
sideration for the surrender by the Rulers of all the ruling powers and also
for the dissolution of the States as separate units.
G
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
H the Secretary to the Ministry of States and closely connected. with the
RAGHUNATH v. U.0.1. [l'ANDIAN, J.] 495
annexation of the princely states "the price paid as Privy Purses was not A
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."
B
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 c
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 D
before and in large number of cases they could have
continu~d 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, there- E
fore, 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 seperate units. We would do
well to remember that the British Government spent enor-
mous amounts in respect of the Mahratta settlements F
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. G

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 H
496 SUPREME COURT REPORTS (1993] 1 S.C.R.
A 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."

B The constitutional provisions of Articles 291 and 362 which are now
deleted by Section 2 of the impugned Constitution (Twenty-sixth) Amend-
ment Act as they stood, read as follows :

"291-f'ri>y purse sums of Rulers
c (1) Where under any covenant or agreement entered into
by the Ruler of any Indian State before the commence-
ment 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-
D
(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.
E
(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
F 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.

G 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
H any such covenant or agreement as is referred to in clause

'
. RAGHUNATH v. U.0.1. (PANDIAN, J.] 497
(1) of Article 291 with respect to the personal rights, A
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.
B
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 recognized c
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 D
"Ruler" means the Prince, Chief or other persori 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 recog~ E
nized 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 :
F
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 othe! person who, at any time G
before the commencement or the Constitution (Twenty-
sixth Amendment) Act, 1971 was recognized by the Presi-
dent 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 H
498 SUPREME COURT REPORTS (1993] 1 S.C.R.

A 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
B 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.

C 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 ~
D 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
E getting all the Rulers within the fold of the Constitution, and that the ~
deletion of these Articles bas 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 af-
firmed by making the privy purse an expenditure charged under the
F 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 pet111anent
G feature of the Constitution reflecting the intention of the foundiiig fathers
of the Constitution and as such these two Articles should have been kept
intact. According to the learned counsel, the deleti0'1 of these Articles
amounted to a grciss breach of the principle of political justice enshrined
in the preamble by1 del>itving or taking away from the princes the privy
purses which were given io them as consideration for surrendering all their
H sovereign rights and contributing to the unity and integrity of the country
.. RAGHUNATII v. U.O.l. [PANDIAN, J.] 499
and that the deletion of these Articles by the impugned Amendment Act 1 A
is arbitr<\fY, unreasoable and violative of Article 14 of the Constitution.
Further it bas 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 B
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 C
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 fundamen-
tally different from the Bharat that came into being.
D
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 uncon-
stitutional, n.ul~ 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 Articles E
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 bas been stated that the constitu- F
tional guarantees and assurances promising continuance of privy purse as
•
enshrined in the Agreements and Coevnants 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 oplliion or buried under acts of States, but the impugned
Act, a fade, has abolished and destroyed those constitutional provisions G
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,
the statement of Sbri V.P. Menon who was closely connected with the
annexation of the princely states and the .speech 'of Sardar Vallabhbbai H
500 SUPREME COURT REPORTS (1993] 1 S.C.R.
A 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 guaran-
tees of Privy Purse, privileges etc., were perfectly in keeping with the
B 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 determin-
e ing that the said guarantees and assurances have come to stay as an integral
and untouchable part of the basic structure of the Constitution.

Fmally, it was said that there can be no basic structure of a Constitu-
tion divorced from the historical evolution of the precepts and principles
D 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
E 366 (22) in the Constitution framed by them would, without any doubt or . -1
dispute, emerge in their own rights 'as basic features' of the Constitution
which cannot be abrogated or annihilated by any Constitutional amend-
ment. What he finally concluded is that the guarantees and as~urances of
the privy purses, privileges etc. contained in the above three Articles were,
F in fact, the reflections of the aforesaid virtues of the Constitution makers
which are the very virtues which characterized the personalifY of the Indian
Constitution and that the Objects and Reasons of the impugned Amend-
ment clearly establish the mala fides of the Amendment.

Mr. A.K Ganguly, the learned senior counsel appearing in IA. No.
G 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
H would be as passed and adopted by the Constituent Assembly of India. On
RAGHUNATI1 v. U.0.1. (PANOIAN, J.) 501
the following day, namely, 26th November, 1949, the Constituent Assembly A
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
B
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 Constitu- c
tion. 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 D
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 Constitu-
tion.
E
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 citizenary of India. In this context, he referred to F
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 'paine 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 G
the erstwhile Princes formed a class apart. When such was the position,
according to the learned counsel, the impugned Amendme~t which violates
the basic structure of the Constitution is unoonstitutional. He cited certain
decisions in support of his arguments that the Amendment Act is violative
of the essential features contained in Articles i4 and 19(1)(1). H
502 SUPREME COURT REPORTS (1993) 1 S.C.R.
A 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. 351n2 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
B 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, -..I._
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
C the principle of justice, fairness and reasonableness are beyond the amend-
ing powers of the Parliament. He further stated that the equality elause 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
D 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 socio-economic 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.
E 4
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
F 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
G 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 ·
H a policy objective or the directive principles of the Constitution. That being
RAGHUNATH v. U.0.1. [PANDIAN, J.) 503
so, the theory of sanctity of contract or unamendability of Articles 291 or A
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. Saganna/, [1965) 3 SCR 201 wherein B
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 sanc-
tions and not under a right legally enforceable in any c
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." D

Furhter 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 E
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 F
privy purse and the recognition of personal privileges etc. and which
agreements 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 G
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) H
504 SUPREME COURT REPORTS (1993] 1 S.C.R.
A Defence, (2) External Affairs and (3) Communications, their contents
being defmed 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 estab-
B lished 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
c second phase involved a process of two-fold 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
D States for attaining the same measure of freedom as was enjoyed by the
people in the Provinces, gained momentum and unleashed strong move-
ments 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
E not in an uniform pattern in all cases. Firstly, it followed the merger of ~
States in the Provinces geographically contigous 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.
F
Sardar Vallabhbhai Patel had a long discussion with the R ulcrs 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) 2.16 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
G of States. Thus, totally 552 States were affected by the integration schemes.

Reference may be made to (1) the Report of the Joint Select Com- Ao'
mittee on Indian Constitutional Reforms (1933-34), (2) the Report of the
Expert Committee headed by Nalini Ranjan Sarkar, published in Decem-
H ber 1947, (3) The Indian States' Finances Enquiry Committee chaired by
RAGHUNATH v. U.0.1. (PANDIAN, J.] 505
Sir V.T. Krishnamachari appointed on 22nd October, 1948 the rccoMmen- A
dations 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 convenants 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
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 C
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 D
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!freaty
on 23rd January, 1950. Under the merger Agreement, the Maharaja of E
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 F
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 ex- · G
ecuted by other Rulers of various States.

While, it was so, in 195C 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 Constitu-
tion. Accordingly, Rulers continued to enjoy the said benefits upto 1970. H
506 SUPREME COURT REYOKIS (1993) 1 S.C.R.
A On 14th May, 1970, the Constitution (Twenty-fourth Amendment)
Bill, 1970 for abolition of the above said privy purse, privileges etc. con-
ferred under Article.s 291, 362 and 366 (22) was introduced in the Lok
Sabha by the t~en Finance Minister, Shri Y.B. Chavan. The Bill contained
three caluses and a short statement of Objects and Reasons. The state-
ments reads thus :
B
"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
c 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 --f·
D 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
E 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.
F An eleven-Judges Bench of this Court by its Judgment dated 15th Decem-
ber 1970 struck down the Presidential Order being illegal, ultra vires and
inoperative on th~ 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
G 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. x
Subsequently, Parliament enacted a new Act entitled the Constitution
H (Twenty-Fourth Amendment) Act, 1971 on receiving the ratification by the

.I
RAGHUNATII v. U.0.1. [PANDIAN, J.)
Legislature of lI"'States. It received the assent of the President on 5th A
N0vember, 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 re-numbered
as cla~e (2). The marginal heading to that article was substituted namely
'Power of Parliament to amend the Constitution and procedure therefor" B
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 up<in
such assent being lo the Bill", the words "it shall be presented to the
President who shall give his assent lo the Bill and thereupon" was sub-
stituted. After the re-numbered clause (2), clause (3) was inserted, namely C
"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 D
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 E
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. '
Aniendment) Act, 1971 by substitut- · F
ing a new clause to clause (2) of Article 31 and inserting clause (2B) after
clause (2A) came into force. By the same Amendment Act, Article 31C
was inserted after Article 318 entitled "Saving of laws giving effect to
certain directive principles". It is significant to note that Article 31 was
omitted by the Constitution (Fourty-fourth Amendment) Act, 1978 w.e.f.
20th June, 1979. G

The impugned Constitution (Twenty-sixth) Amendment, 1971 was
passed by the Parliament and it received the assent of the President on
28th December 1971. By this Act, Articles 291, 362 were omitted and
Article 363-A was inserted under the title "Recognition granted to Rulers H
508 SUPREME COURT REPORT!' (1993] 1 S.C.R.
A of India States to cease and privy purses to be •\loolisbed". By the same
Amendment Act, an amended new clause was substituted to the then
existing clause (22). We have already reproduced Articles 291, 362 and the
past and present clause (22) of Article 366.

After the impll811ed Twenty-sixth Amendment was brought into force
B w.e.f. 28th December, 1971, the present writ Petition No. 351 of 1972 was
filed on 24th August, 1972 for declarations that the Twenty-fourth, Twen-
ty-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
C 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 Malekotla seeking same relief as
in Writ Petition No. 351 of 1972.

D
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 His Holiness
Kesavananda Bharati Sripadagalvaru v. State of Kera/a and Another was
pending before this Court.

E Wben both these Writ Petitions i.e., W.P. No. 351 and 352 of 1972
were listed together, on 28th August, 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
F 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 States. All the Writ Peti·
tions to be heard on the 23rd October,1977.. Written
G arguments dispensed with."

A thirteen-Judges bench of this court in Kesavananda Bharati v. State
of Kera/a, (1973] 4 SCC 225 heard some writ petitions along with these two
writ petitions and gave its conslusions thus :

H "The view by the majority in these writ petitions is as
RAGHUNA'JH v. U.0.1. [PANDIAN, J.j 509
follows: A
1. Golak Nath's case is over-ruled;

2. Art. 368 do.es not enable Parliament alter the basic
structure of framework of the Constitution;
B
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;
c
5. The first part of Section 3 of the Constitution (Twen-
ty-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. D

6. The Constitution (Twenty-ninth Amendment) Act,
1971 is valid.

The Constitution Bench will determine the validity of the
Constitution (Twenty-sixth Amendment) Act, 1911. in ac- E
cordance with law.

The cases are remitted to the Constitution Bench for
disposal in accordance with h:.w. There will be no order
as to costs incurred up to this stage."
F
In pursuance of the said Order, Writ Petition No. 351of1972 is now
before this Constitution Bench for determination of the constitutional
validity of the Twenty-sixth Amendment Act in acco•dance with the law
laid down in Kesavananda Bharati.
G
Since the constitutional validity of the same Twenty-sixth Amend-
ment Act is involved in Writ Petition No. 798 of 1992, it is also before this
Bench along with Writ Petition No. 351 of 1972.

As regards the inbuilt separate mechanism for amending the Con-
stitution, Dr. Arnedkar said, "One can, therefore, safely say that the Indian H
1
510 SUPREME COURT REPORTS (1993) 1 S.C.R.
A federation will not suffer from the faults of rigidity or legalism. Its distin·
guishing feature is that it is a flexible federation." Dr. Wheare in his modem
Constitution has commended that it 'strikes a good balance by protecting
the l'ights of the State while leaving remainder of the Constitution easy to
amend." Our constitution is amendable one. In fact, till now Seventy-two
B amendments have been brought about, the first of which being in 1951 i.e.
within 15 months of the working of the Constitution.

The first amendment was challenged in Shankari Prasad v. Union of
India, (1952) SCR 89 but the Supreme Court unanimously upheld the·
validity of the Amendment.
c A brief note as regards the circumstances which necessitated the
Twenty-fourth Amendment being brought may be recapitulated.

The Constitution Bench of this Court in Sajjan Singh v. State of
Rajasthan, (1965) 1 SCR 933 wherein the constitutional validity of the +
D Constitution (Seventeenth Amendment) Act, 1964 was challenged,
reiterated the views expressed in Shankari Prasad by a mojority of three
Judges although two Judges gave their separate dissenting judgments. One
of the dissenting Judges, Hidayatullah, J stated that the "Constitution gives
so many assurances in Part Ill that it would be difficult to think that they
E were the playthings of a special majority." The other dissenting Judge;
Mudholker, J. took the view that the word 'law" in Article 13 included a
constitutional amendment under Article 368 and that, therefore, the Fun-
damental 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.
F
The concerns of the two dissenting learned Judges came before an
eleven-Judges Bench of this Court in Go/ak Nath v. State of Punjab, AIR -{-
1967 SC 1643 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
G of the provisions of Part III . . . . . . . so as to take away or abridge the
fundamental rights enshrined in that Part. The decision in Golak Nath was
rendered in 1967, but one of the amendments it would invalidate dated -<
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
H economic relations, had the Court ruled that the amendments were void
RAGHUNATII v. U.0.1. [PANDIAN, J.] 511
ab inilio, relied on American cases and adopted the doctrine of prospective A
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
amend or abridge any of the Fundamental Rights. Therefore, intending to
override the ruling in Gotllk Nath 's case, the (Twenty-fourth Amendment)
B
Act, 1971 was brought, as reflected from the Objects and Reasons of the
Twenty-fourth Amendment, which read thus :

Objects and Reasons

In the Golak Nath case, (1%7] 2 SCR 762, the Supreme C
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 curtain any of the fundamental rights even if became D
necessary to do so· for the attainment of the objectives set
out in the Preamble to the Constitution. The Act, there-
fore, amends the Constitution to provide expressly the
Parliament power to amend any part of the Constitution."

Thereafter, the Twenty-fifth Amendment Act was brought in 1971
E
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 Cawasjee Cooper
v. Union of India, (1970] 3 SCR 530. The said Act substituted clause (2)
and inserted clause (2B) io Article 31 and added Article 31C. These F
. 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 's case, were the subjects for decision in Kesavananda
Bharati. Though Writ Petition No. 351 of 1972 challenging the twenty-
fourth, twenty-fifth and twenty-sixth Amendment Act was also listed along G
with other writ petitions in Kesavananda Bharali, the constitutional validity
of the twenty-sixth amendment was left over for determination by a Con-
stitution Bench.

We shall now proceed to examine the constitutional validity of the
ampugned Amendment Act. H
512 SUPREME COURT REPORTS (1993) 1 S.C.R.
A The question whether Article 291 is a promion related to the
Covenants and Agreements entered into between the Rulers of the States
and Indian Domination and is that in reality and substance a provision on
the subject- matter of covenants and agreements were considered by
~dayatullah, CJ in his separate concurring judgment in Madhav Rao and
B they are 3nswered in the following terms :

'The Article when carefully analysed leads to these con-
clusions: 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 in-
c come. It narrows the guarantee of the Dominion Govern-
ment from freedom from all taxes to freedom only from
taxes on income. Earlier I had occasion to show that the
Princes had guaranteed to themselves their Privy Purses
free of all taxes. The Dominion Government had guaran-
teed or assured the same freedom. The Constitution limits
D
the freedom to taxes on income and creates a charge on
the Consolidated Fund. There were other guarantees as
in the Merger Agreements of Bilaspur and Bhopal
(quoted earlier) which are ignored by the Article. The
guarantee of the Dominion Government is thus continued
E in a modified form. The reference to Covenants and Agree-
ments 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 on income."
F
(emphasis supplied)

Shah, J speaking for the majority with reference to the covenants and
agreements made the following observation :

G "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 Art. 291. The source of the
obligation was in Art. 291, and not in the covenants and the
H agreements." (emphasis supplied)
RAGHUNATH v. U.0.1. [PANDIAN, J.) 513
So far as Article 362 is concerned, it has been held by majority of A
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 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 B
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.

The important question now that arises for our consideration is
whether the twenty-sixth amendment Act, which completely omitted Ar- C
tides 291, 362 and inserted a new Article 363A and also substituted a new
clause (22) in place of its original clause or Article 366, has destroyed,
damaged and altered the basic structure of the Constitution.

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 Con- D
stitution 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 supplernentary questions
have to be examined, those being as to what is the parameter or the mode
by which an amendment can be brought and what are limitations - either E
express or implied - on the amending power which inhers in the Constitu-
tion itself including its Preamble.

Before, we proceed further, let us understand what is meant by an
'amendment'. The word· has latin origin 'emendere' - to amend means to
correct. Walter F. Murply in 'Constitutions, Constitutionalism and F
Democracy' while explaining what 'amendment' means has stated :
11
Thus an amendment corrects errors of commission or
omission·, modifies the system without fundamentally
changing its nature - that is an amendment operates within
G
the theoretical parameters of the existing Constitution."

In our Constitution, the expression 'amendment of the Constitution'
is not defined. However, Part XX which contains one Article viz. Article
368 provide a special procedure for amending certain provisions of the
Cons6tution under the heading "Amending of the Constitution". H
514 SUPREME COURT REPORTS [1993) 1 S.C.R.

A 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 te authority of the Parliament in bringing about the
impugned amendment Act is not under challenge.

After the judgment of Madhav Rao Scindia the twenty-sixth amend-
B ment 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 rulership, with privy purses and special
c 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
D insert a new article thereill so as to terminate expressly
the recognition already granted to such Rulers and to
abolish privy purses and extinguish all rights, liabilities and
obligations in respect of privy purses. Hence this Act."

We shall now deal with the dictum laid down in Kesavananda Bharati
E
as regards the power vested in the Parliament and the limitations - either
express or implied or inherent therefor to amend the Constitution. 1
In Kesavananda Bharati, the Supreme Court upheld the validity of
the twenty-fourth Amendment. Of the 13-Judges, Shelat, Hedge, Grover,
F Jagmohan Reddy and Mukherjea observed that the Twenty-fourth Amend-
ment did not 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 • -1
power originally conferred thereunder. Ray, J said that the Twenty-fourth
Amendment made explicit what the judgment in Shankari Prasad and the
G majority judgment in Sajjan Singh and the dissenting judgment in Go/ak
Nath said, namely, that Parliament has the constituent power to amend the
Constitution. Sikri, CJ and Ray, Palekar, Khanna, Beg, Dwivedi, JJ who
also held the twenty-fourth Amendment valid, said that under Article 368
Parliament can now amend every article of the Constitution.

H According to Khanna, J. the non-obstante clause (1) has been in-
RAGHUNAIB v. U.0.1. [PANDIAN, J.] 515
serted in the article to emphasise the fact that the power exercised under A
J_~· 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
B
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 regard the assent of the President to the Bill, everything else in
the twenty-fourth Amendment was already there in the unamended Article
368 and that this amendment is really declaratory in nature and removes
doubts cast on the amending power by the majority judgment in Go/ak c
Nath. Sikri, CJ. elaborating the above theme has observed that the Twen-
ty-fourth Amendment, insofar as it transfers power to amend the Constitu-
tion from the residuary entry (Entry 97, List I) 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 D
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 Constitu·
tion as long as the result is within the limits laid down.

Thus the Constitutional questions that arose in Kesavananda
E
Bharati's case were scrupulously and conscientiously examined in detail on
varied and varying topics from different angles such as 'the basic elements
of the Constitutional structure', 'the 'basic structure of the Constitution',
.'the essential and non-essential features of the Constitution', 'the plenary
power of amendment' etc. etc., and finally by majority it is laid down that F
the power of amendment is plenary and it includes within itself the power
to add, alter or repeal the various Articles of the Constitution including
those relating to fundamental rights, but the power to amend does not
include the power to alter the bai;ic structure or framework or •he Con·
stitution so as to change its identity. In fact, there are inherent or implied G
limitations on the power of amendment under Article 368.

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. H
516 SUPREME COURT REPORTS 11993] 1 S.C.R.
A One of the points urged in common before us is that the framers of
the Constitution in their wisdom had thought it fit to incorporate the words
'guaranteed' or 'assured' in Article 291 which by their very plain meaning
convey the intention of the framers of the Constitution guaranteeing or
promising that the erstwhile Rulers of the States would be en•Htled to
B receive their privy purses from the revenues of the Union and that it would
be free from all truces.

As we have indicated above there were multiple sequence of events
in the historical evolution which necessitated the India.n Rulers to enter
into various agreements and ultimafoly to agree for integration of their
C States with the Dominion of India by dissolving the separate indentity of
their States and surrendering their sovereignty but reserving only their
rights for privy purses and privileges. Though India was geographically
regarded as one entity it was divided in as many as about 554 segments
-big and small. On 15th August 1947 the British paramountacy lapsed and
D India attained its independence. The fact that a heavy price was paid to
attain independence and freedom which are sanctified by the blood of
many martyrs is unquestionable. During the independence struggle there
was popular urge in the Indian States for attaining the freedom· which
unleashed strong movements for merger and integration of the States with
the Dominion of India.
E
The agreements entered into by the Rulers of the States with the
Government of India were simple documents relating to the accession and
11
the integration and the nassurances and guarantees given under those
documents were only for the fixation of the privy purses and the recognition
F of the privileges. The guarantees and the assurances given under the
Constitutioo were independent of those documents. After the advent of the
Constitution, the Rulers enjoyed their right to privy purses, private proper- ·+
ties arid privileges only by the force of the Constitution and in othe.r
respects they were only ordinay citizens of India like any other citizen, of
course, this is an accident of history and with the concurrence of the Indian
G people in their Constituent Assembly.
•
Therefore, there cannot be any justification in saying that the guaran- V
tees and assurances given to the Rulers were sacrosanct and that Articles
291 and 362 reflected only the terms of the agreements and covenants. In
H fact as soon as the Constitution came into force, the Memoranda of
RAGHUNATH v. U.0.1. [PANDIAN, J.] 517
Agreements executed and ratified by the States and Union of States were A
embodied in formal agreements under the relevant Articles of the Con-
stitution and no obligation flowed from those agreements and covenants
but only from the Constitutional provisions. To say differently, after the
introduction of Articles 291 and 362 in the Constitution, the agreements
and covenants have no existence at all. The reference to Covenants and
B
Agreements was casual and subsidiary and the source of obligation flowed
only from the Constitution. Therefore, the contention urged on the use of
the words 'guaranteed' or 'assured' is without any force and absolutely
untenable.

The next vital issue is whether the impugned Amendment Act has C
damaged any basic structure or essential feature of the Constitution.

According to Mr. Soli J. Sorabjee, by the repeal of Articles 291 and
362 which were integral part of the constitutional scheme, the identity of
_,_ the Constitution has been changed and its character has been fundamen- D
tally altered. The total repeal of these Articles coupled with an express
repudiation of the guarantees embodied therein has resulted in nullification
of "a just quid pro quo" which were the essence of these guarantees. He has
urged that the underlying purpose of doing justice to the Rulers has been
subverted and breach of faith has been sanctioned. He based the above
r--- arguments on three decisions of this Court, namely, (!) Waman Rao and E
Others v. Union of India and Others, (1980] 3 SCC 587 at 588-80; (2)
Maharao Sahib Shri Bhim Singhji v. Union of India and Others, (1981] 1
SCC 166 at 212; and (3) Madhav Rao v. Union, [1971] SCR 9 at 74 and 83.

There has been a common recurrent argument that the impugned F
Amendment Act is beyond the constituent power of the Parliament since
it has damaged the basic structure and essential features of the Constitu-
tion.

Mr. D.D. Thakur in addition to the above has stated that one of the
tests to determine whether the provision of the Constitution was intended G
to be permanent or could be deleted or ame.nded is to see whether the
Constitution makers had intended that to be permanent. In support of his
submission, he placed much reliance on the observation of Mudholkar, J
in Sajjan Singh v. State of Rajasthan, (1965] 1 SCR 933 at page 966 reading
thus: H
518 SUPREME COURT REPORTS (1993] 1 S.C.R.
A "Above all, it formulated a solemn and dignified preamble
which appears to be an epitome of the basic features of
the Constitution. Can it not be said that these are indicia
of the intention of the Constituent Assembly to give a
permanency to the basic feature of the Constitution."
B This observation has been reiterated in a separate judgment of
Hedge and Mukherjea, JJ in Kesavananda Bharati stating that it was
Mudholkar, J who did foresee the importance of the question whether
there is any implied limitation on the amending power under Article 368
of the Constitution. On the basis of the above, he has urged that if the
C intention of the founding fathers regarding the permanence or imper-
manence of a provision of the Constitution is conclusive for determining
whether a provision is basic or not, there is no difficulty in gathering the
intention of the founding fathers from Article 362 itself. He continues io
state that the fact that 'assurances and guarantees" had been insulated
D against every future constituent inroad or legislative incursion of Par-
liamentary control is further substantiated from the provisions of Article
291 of the Constitution.

Mr. A.K. Ganguly has adopted the above arguments and supple-
mented the same stati'lg that the privileges of the Rulers of the State were
E made an integral part of the constitutional scheme and that thereby a class
of citizens are for historical reasons accorded special privileges and that
the recognition of the status, rights and privileges coferred on the Rulers
were not on temporary basis and as such they are not liable to be varied
or repudiated.
F Mr. Nariman also emphasises the same.

Before adverting to the above contentions, we state in brief about the
basic principle to be kept in view while amending a Constitution. -(~

G 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.

The Courts are entrusted with important constitutional respon-
H sibilities of upholding the supremacy of the Constitution. An amendment
RAGHUNATH v. U.0.1. [PANDIAN, J.] 519
of a Constitution become ultra vires if the same contravenes or transgresses A
..... the limitations put on the amending power because there is no touchstone
outside the Constitution by which the validity of the exercise of the said
powers conferred by it can be tested.

In our Constitution, there are specific provisions for amending the
Constitution. The amendments had to be made only under and by the
B
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
c
- 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
-r basic structure or loss of its original identity and character and render the
D
· Constitution unworkable. The Court is not concerned with the wisdom
behind or proprietary 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 E
structure or the essential features of the Constitution.

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. The doctrine of basic structure was originated in F
Sajjan Singh and has been thereafter developed by this Court in a line of
-::-,s cases, namely {1) Kesavananda Bharati (supra), {2) Indira Gandhi Nehru,
(3) Minerva Mills, (4) Waman Rao and (5) Sanjeev Coke Manufacturing
Company v. Bharat Coaking Coal Ltd., (1983) 1SCC147.

G
Mr. Soli J. Sorabjee in support of his contention that Articles 291
and 362 and clause (22) of Article 366 were integral part of the constitu-
~ tional scheme which otherwise would mean the 'essential part of the
constitutional scheme', referred to Webster New International Dictionary,
3rd Edition and Collins Concise i:;:nglish Dictionary, and has pointed out
the lexical meaning say, that 'integral' means 'essential' and, therefore, H
520 SUPREME COURT REPORTS (1993] 1 S.C.R.
A according to him, the total abolition of the provisions of the Constitution
which are its integral parts - otherwise essential parts - has damaged the
essential and basic features of the Constitution. To draw strength for his
submission, he relied upon ·certain observations made by Shah, J in his
judgment in Madhav Rao observing, "By the provisions enacted in Articles
366(22), 291 and 362 of the Constitution the previliges of Rulers are made
B an integral part of the constitutional scheme" and "An order merely "de-
recognising" a Ruler without providing for continuation of the institution
of Rulership which is an integral part of the constitutional scheme is,
therefore, plainly illegal." (emphasis supplied)

The learned Attorney General has vehemently opposed the above
C submission stating that the expression "integral part of the scheme of the
Constitution" used in M adhav Rao are not the same as the basic structure
and that expression has to be read in the context of a challenge to the
Ordinance which sought to render nugatory certain rights guaranteed in
the Constitution, then existing. It is further stated that the attack on the
D Twenty-sixth Amendment based on the principles laid down. in Madhav
Rao is totally misconceived becuase only in order to overcome the effect
of that judgment, the Twenty-sixth Amendment was passed by the Parlia-
ment in exercise of its constituent powers. According to the Attorney
General, the observations in the said case were nullified by the Amendment
E and that judgment is no longer good law after the Amendment. To test the
Amendment on the basis of that judgment is impermissible and all the
arguments based upon this case are, therefore, misconceived.

In this content, it becomes necessary to recall certain events which
ultimately gave rise to Madhav Rao's case.
F
After the commencement of the Constitution, in pursuance of Article
366(22), the Rulers were recognised and they had been enjoying the Privy :('-
purses, privileges, dignities etc. on the basis of the relevant constitutional
provisions. Pursuant to the resolution passed by the All India Congress
G Committee in 1967, the Union of India introduced the Twenty-fourth
Amendment Bill in 1970 to implement the decision of the All India
Congress Committee favouring removal of privy purses, privileges etc. But
the Bill though passed in the Lok Sabha failed to secure the requisite
majority in the Rajya Sabha and thereby it lapsed. It was only thereafter,
the President of India issued an Order in exercise of the powers vested in
H him under Article 366(22) derecognising the Rulers and stopping the privy
RAGHUNATH v. U.0.1. (PANDIAN, J.) 521
purses, privileges etc. enjoyed by the rulers. This Order passed by the A
President was the subject-matter of challenge in Madhav Rao. The
Supreme Court struck down the Order of the President as invalid as in the..
view of the Court derecognition of the Rulers would not take away right
to privy purses when Articles 291 and 362 were in the Constitution. It was
only in that context, the observations which have beeen retie~ upon by Mr. B
Soli J. Sorabjee, were made. The Twenty-sixth Amendment itself was
passed by Parliament to overcome the effect of this judgment. Now by this
Amendment, Articles 291 and 362 are omitted, Article 363A is inserted
and clause 22 of Article 366 is amended. Therefore, one cannot be allowed
to say that the above said omitted Articles and unamended clause were the
essential part of the constitutional scheme. So they have to be read only in C
the context of a challenge made to the Presidential Order which sought to
render nugatory certain rights guaranteed in the Constitution which were
then existing. In any event, the constitutional bar of Article 362 denudes
the jurisdiction of any Court in disputes arising from covenants and treaties
executed by the Rulers. The statement of Objects and Reasons of Twen· D
ty-sixth Amendment clearly points out that the retention of the above
Articles and continuation of the privileges and privy purses would be
incompatible with the egalitarian society assured in the Constitution and,
therefore, in order to remove the concept of rulership and terminate the
recognition granted to Rulers and abolish the privy purses, this Amend·
ment was brought on being felt necessary. E

We are of the opinion that the observations of Shah, J in Madhav
Rao that 'the privileges of Rulers are made an integral part of the constitu·
tional scheme' and that "institution of Rulership · is an integral part of the
constitutional scheme", must be read in their proper context. That was a F
case, where by a Presidential order, the Rulers were deprived of their privy
purses and other privileges while keeping Articles 291 and 362 intact in the
Constitution. Indeed, the said Presiden!jal order was issued after the
Government .failed in its attempt to effect an amendment on those lines. It
is in that connection that the learned Judge made the above observations. G
It is clear that the learned Judge used the. words 'integral part' in their
ordinary connotation · not in any lexicographical sense. Ordinarily speak- ·
ing, 'integral' means 'of a whole or necessary to the completeness of a
whole' and as "for111ing a whole" (Concise Oxford Dictionary). Our Con·
stitution is not a disjointed document. It incorporates a particular socio·
economic and political philosophy. It is an integral whole. Every provision H
522 SUPREME COFRT REPORTS (1993] 1 S.C.R.
A of it is an integral part of it - even the provisions contained in Part XXI
"Temporary, Transitional and Special Provisions". One may ask which
provision which concept or which 'institution' in the Constitution is not an
integral part of the Constitution? He will not find an answer. To say that
a particular provision or a particular 'institution' or concept is an integral
part of the Constitution is not to say that it is an essential feature of the
B
Constitution. Both are totally distinct and qualitatively different concepts.
The said argument is really born of an attempt ,to read a judgment as a
statute. One may tend to miss the true meaning of a decision by doing so.
We may say, the aforesaid observations of Shah, J. constituted the sheet-
anchor of the petitioners' argument relating to basic structure.
c
In the above premise, it is not permissible to test the Twenty-sixth
Amendment with reference to the observations made in Madhav Rao.

We shall now dispose of the contention raised in the grounds of the
Writ Petition No. 351 of 1972 that the impugned Amendment is violative
D of Articles 14, 19(1)(1) and (g), 21, 31 (1) and (2) of the Constitution.
Evidently this contention has been raised in the year in 1972, that is long
before the Constitution (Forty-fourth Amendment) Act of 1978 was passed
w.e.f. 26th June 1979. Writ Petition No. 798 of 1992 has been filed on
October 15, 1992 in which the ground with reference to Articles 19(1)(1)
E and 31 are left out. It is to be stated that Articles 19 (1) (f) and 31 are
completely omitted by the Forty-fourth Amendment. By the deletion of
these Articles by Forty-fourth Amenement, the status of 'right to property'
from that of a fundamental right is reduced to a legal right under Article
300A which reads "No person shall be deprived of his property save by
authority of law". However, in order to allay the fears of the minorities in
F respect of that right guranteed in the then Article 31, Article 30 (IA) has
been inserted by the Forty-fourth Amendment.

The right to property even as a fundamental right was not a part of
the basic structure and even assuming that the right to privy purse is a
G property, it is a right capable of being extinguished by authority of law vide
Article 300A. Needless to emphasise, according to the rules laid down in
Keshavananda Bharati that even the fundmental right can be amended or
altered provided the basic structure of the Constitution in any way is not
damaged.

H Permanent retention of the privy purse and the privileges of rights
RAGHUNATH v. U.O.l. [PANDIAN, J.] 523
would be incompatible with the sovereign and republican form of Govern- A
ment. Such a retention will also be incompatible with the egalitarian form
of our Constitution. That is the opinion of the Parliament which acted to
repeal the aforesaid provisions in exercise of its constituent power. The
repudiation of the right to privy purse privileges, dignities etc. by the
deletion of Articles 291 and 362, insertion of Article 363A and amendment
B
of clause 22 of Article 366 by which the recognition of the Rulers and
payment of privy purse a~e withdrawn cannot be said to have offended
Article 14 or 19 (g) and we do not find any logic in such a submission. No
principle of justice, either eC<lnomic, 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 C
Government and right to participation in political affairs. Economic justice
is enshrined in Article 39 of the Constitution. Social justice is enshrined in
Article 38. Both are in the Directive Principles of the Constitution. None
of these rights are abridged or modified by this Amendment. We fee.I that
this contention need not detain us any more and, therefore, we shall pass D
on to the next point in debate.

A serious argument has been advanced that the privy purse was a
just quid pro quo to the Rulers of the Indian States for surrendering their
sovereignty and rights over their territories and that move for integration
began on a positive promising note but it soon de-generated into a game E
of manoeuvre presumably as a deceptive plan or action. This argument
based on the ground of breaking of solemn pledges and breach of promise
cannot stand much scrutiny. To say that without voluntary accession, India
i.e. Bharat would be fundamentally different from that Bharat that came
into being prior to the accession is untenable muchless inconceivable. We F
have already dealt with the necessity of the Rulers to accede for the
integration of States with the Dominion of India in the earlier -part of this
judgment and, therefore, it is quite unnecessary to reiterate in this context,
except saying that the integration could have been achieved even otherwise.
One should not lose sight of the fact that neither because of their antipathy G
towards the Rulers nor due to any xenophobia, did the Indian Government
entertain the idea of the integration but because of the will of the people.
It was the people of the States who were basically instrumental in the
integration of India. It would be apposite to refer to the observation of
Bose, J in Varinder singh & Ors v. State of U.P., (1955] SCR 415 at 435. The
said observation reads as follows : H
524 SUPREME COURT REPORTS [1993] 1 S.C.R.
A 'Every vestige of sovereignty was abandoned by the
dominion of India and by the States and surrendered to
the peoples of the land who through their representatives
in the Constituent Assembly hammered out for themselves
a new Constitution in which all were citizens in a new
order having but one tie, and owning but one allegiance :
B devotion, loyality, fidelity to the Sovereign Democratic
Republic that is India."

It is also worthwhile to take note of the historical process of states
integration which is well set out in Chapter 18 under the heading Indian
C States in ''The Framing of Constitution - A Study by B. Shiva Rao. A
persual of that chapter indicates that the attitude of the princes towards
joining a united India was one of resistance, reluctance and high bargain,
and it was the peoples of the States who forced them to accede to the new
United India. To say in other words, the States were free but not stable
D because of the stress and strain they underwent both from inside and
outside. Though the process of integration and democratisation called as
"unionization" in the words of Sardar Patel, was undertaken step by step at
various stages, multiple forces, such as political, economic and geographic,
more so the democratic movement within the States accelerated the
process of integration. Therefore, it is a misnomer to say that the Rulers
E made thei.r .sacrifices for which they were given ju't compensation and
assured permanent payment of privy purses. What was given to the Rulers
was a political pension a' rightly pointed out in Usman Ali's case, on
consideration of their past position. Hence there is no question of breaking
of solemn pledges or breach of promises etc. given to the Rulers. There-
F fore, the repudiation of the same cannot be said to have amounted to any
breach of those guarantees and promises resulting in alteration of the basic
structure of the Constitution.

Mr. D.D. Thakur has submitted that the Twenty-sixth Amendment is
an ugly epitome of immorality perpetrated by the Indian Parliament, that
G too in the exercise of its constituent powers and that the justice, fairness
and reasonableness is the soul, spirit and the conscience of the Constitution
of India as framed originally and that the impugned Amendment Act
constitutes an unholy assault on that spirit which is impermissible and
beyond the amending powers of the Parliament under Article 368 of the
H Constitution. According to him,. the equality clause as interpl'eted by this
RAGHUNATH v. U.0.1. [PANDIAN, J.] 525
Court in (1) Maneka Gandhi v. Union of India, [1978] 2 SCR 621, (2) R.D. A
Shetty v. International Airport Authority of India, [1979) 3 SCC 489, (3)
Kasturi Lal Lakshmi Reddy v. State of Uttar Pradesh, (1986] 4 SCC 704, (4)
E.P. Royappa v. State of Tamil Nadu, [1974] 2 SCR 348, (5) Indira Gandhi's
case and (6) Minerva Mill's case (supra) is the most important indispen-
sable feature of the Constitution and destructioll thereof will amout !o
B
changing the basic structure of the Constitution.

Mr. Harish Salve in addition to the above, urged that the basic
structure test is to be applied on ihe touchstone of the Constitution as it
stood while being delivered at the hands of the Constitution makers and
that it would be contrary to the very principle of the basic structure to apply C
.any personal notion or ideological predilections while determining the
'personality test' of the original Constitution. Further he states that the
identity of the Constitution has been lost on account of the impugned
Amendment.

As regards the submission that the amendment is an ugly epitome of D
immorality perpetrated by the Indian Parliament, it has been seriously
opposed by the learned Attorney General that this argument based on
immorality has only to be stated to be rejected and that it is an elementary
principle of jurisprudence that a law cannot be interpreted on the basis of
moral principles. In this connection, reference may be made to the follow- E
ing passage in Dias's Jurisprudence, Fifth Edition, at Page 355 and 356, It
reads thus :

"As a positivist, Prof. Hart excludes morality from the concept of law, for
he says that positivists are concerned to promote
F
'clarity and honesty in the formulation of the theoretical
and moral issues raised by the existence of particular laws
which were morally iniquitous but were enacted in proper
form, clear in meaning, and satisfied all the acknowledged
criteria of validity of a system. Their view was that, in
thinking about such laws, both the theorist and the unfor- G
tunate official or private citizen who was called on to apply
or obey them, could only be confused by an invitation to
refuse the title of 'law' or 'valid' to them. They thought
that, to confront these problems, simpler, more candid
resc.urces were available, which would bring into focus far H
526 SUPREME COURT REPORTS (1993] 1 S.C.R.
A better, every relevant intellectual and moral consideration:
we should say, 'This is law; but it is too inquitous to be
applied or obeyed."

"It was pointed out at the beginning of this chapter that
the principal. f311 for a positivist concept of law is to
B identify laws precisely for the practical purposes of the
present and that for the limited purpose, it is desirable to
separate the 'is' from the 'ought'. To accomplish this no
more would appear to be needed than simply those uses
of the word 'law' by courts; which is akin to Salmond's
c definition alluded to above. Professor Hart's concept,
however, is of 'legal system', which is a continuing
phenomenon.

D
When Professor Hart thinks in a continuum, as he does
with society, he has to bring in morality; but in order to
defend positivism he shifts ground and takes refuge in the
present time-frame, for only in this way can he justify the
exclusion of morality for the purpose of identifying laws
E
here and now. There would thus appear to be a greater
separation between his concept of law and his .positivism
than ever he alleges between law and morality. For the
limited purpose of identifying 'law' his concept seeks to
accomplish more than is necessary; for the purpose of
F portraying.law in a continuum it does not go far enough.

Bentham in his Theory of Legislation, Chapter XII at page 60 said thus:

"Morality in general is the art of directing the actions of
men in such a way as to produce the greatest possible
G sum of good. Legislation ought to have precisely the
same object. But although these two arts, or rather
sciences, have the same end, they differ greatly in extent.
All actions, whether public or private, fall under the
jurisdiction of morals. It is a guide which leads the
H individual, as it were, by the hand through all the details
RAGHUNATif v. U.0.1. [PANDIAN, J.) 527
of his life, all his relations with his fellows. Legislation A
cannot do this; and, if it could, it ought not to exercise
a continual interference and dictation over the conduct
of~en. Morality commands each individual to do all
that is advantageous to the community, his own personal
advantage included. But there are many acts useful to
B
the community which legislation ought not to command.
There are also many injurious actions which it ought not
to forbid, although mor.ility does so. In a word legislation
has the same centre with morals, but it has noi-the same
circumference."
c
Reference may also be made to Krishna Kumar v. Union of India,
(1990) 4 sec 201.

The above passages remind us of the distinction between law and
morality and the line of demarcation which separates morals from legisla- D
tion. The sum and substance of it is that a moral obligation cannot be
converted into a legal obligation.

In the light of the above principle, the Attorney General is right in
saying that Courts are seldom concerned with the morality which is the
concern of the law makers. E

According to him there is no unreasonableness, unfairness and
dishonesty in bringing this amendment or in any way injuring the basic
feature of the Constitution and this amendment has not caused any damage
to the concept of reasonableness and non-arbitrariness pervading·the entire
F
Constitution scheme.

- '3: On a deep consideration of the entire scheme and content of the
Constitution, we do not see any force in the above submissions. In the
present case, there is no question of change of identity on account of the
Twenty-sixth Amendment. The removal of Articles 291 and 362 has not G
made any change in the personality of the Constitution either in its scheme
nor 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. In fact, in the present case, the
identity of the Constitution even on the tests proposed by the counsel of H
528 SUPREME COURT REPORTS [1993] 1 S.C.R.
A the writ petitioners and interverners, remains the same and unchanged.

Mr. R.F. Nariman has contended that by removing the 'real and
substantial' distinction between the erstwhile Princes forming a class and
the rest of the citizenary of India the Constitutional amendment has at one
stroke violated the basic structure of the Constitution as reflected both in
B Articles 14 and 51 (c) and treated unequals as equals thereby giving a go-by
to a solemn treaty obligation which was sanctified as independent Constitu-
tional guarantee. He has drawn strength in support of his above argument
from the decisions in Md. Usma11 & Ors. v. State of Andhra Prades/1 & Ors,
[1971) Supp. SCR 549 and Ramesh Prasad Singh v. State of Bihar & Others,
C [1978) 1 SCR 787.

• After carefully going through the above decisions which relate to
service matters, we are afraid that such an argument as one made by Mr.
Nariman could be substantiated on the principles laid down in these two
D decisions that Article 14 will be violated if unequals are treated as equals.
In our considered opinion this argument is misconceived and has no
relevance to the facts of the present case. One of the objectives of the
Preamble of our Constitution is 'fraternity assuring the dignity of the
individual and the unity and integrity of the nation.' It will be relevant to
cite the explanation given by Dr. Ambedkar for the word 'fraternity'
E explaining that 'fraternity means a sense of common brotherhood of all
Indians.' In a country like ours with so many disruptive forces of
regionalism, communalism and linguism, it is necessary to emphasise and
reemphasise that the unity and integrity of India can be preserved only by
a spirit of brotherhood. India has one common citizenship and every citizen
F should feel that he is Indian first irrespective of other basis. In this view,
any measuro, at bringing about equality should be welcome. There is no
legitimacy in the argument in favour of continuance of princely privileges.
Since we have held that abolition of privy purses is not violative of Article
14, it is unnecessary for us to deal with the cases, cited by Mr. Nariman,
which according to him go to say that any law violating Article 14 is equally
G violative of the basic structure of the Constitution, inasmuch as Article 14
is held to be a basic postulate of the Constitution.

One of the arguments advanced by Mr. D. D. Thakur is that the
Constitution should be read in the context of the pluralistic society of India
H where there are ~veral distinct and differing interests brought together
RAGHUNXl"H v. U.O.L iPAND!AN. Jj 529
and harmonised by the Constitution makers by assuring each Section, class A
and society, preservsation of certain political, cultural and .-..ocial features
specific to that class or section. By way of example, reference to Article
370 which confers a special_ status for Jammu and Kashmir, is made. He
continues to state that likewise in the North-Eastern States, the trihals were
given autonomus powers for their District Councils coequal to what is
B
conferred on the states and that for minorities, special provisions are made
under Article 30. Besides Articles 25 and 26 are meant to safeguard the
minorities and religious denominations. The persons to determine the
injury will be those for whom these provisions were made and whose
interests are prejudiced. According to him, in such a circumstance the
"assurances and guarantees given under Articles 291 and 362 which are the c
magna karta assuring the rulers of their pre-existing rights cannot in any
way be destroyed. We do not think that the aforesaid special provisions
have any relevance herein.

As repeatedly pointed out supra, the only question is whether there
is any change in the basic structure of the Constitution by deletion of D
Articles 291, 362 and by insertion of Article 363A and amendment of clause
(22) of Article 366. We have already answered this question in the negative
observing that the basic structure or the essential features of the Constitu-
tion is/are in no way changed or altered by the impugned Amendment Act.
We cannot make surmises on 'ifs' and ·'buts' and arrive to any conclusion E
that Articles 291 and 362 should have been kept intact as special provisions
made for minorities in the Constitution. It is but a step in the historical
evolution to achieve fraternity and unity of the nation transcending all the
regional, linguistic, religious and other diversities which are the bed-rock
on which the constitutional fabric has been raised. The distinction between
the erstwhile Rulers and the citizenary of India has to be put an end to so
F
as to have a common brotherhood.

On a careful consideration of the various aspects of both the writ
petitions, we hold that the Constitution (Twenty.sixth Amendment) Act of
1971 is valid in its entirety. G
For all the 'aforementioned reasons, both the Writ Petitions as well
as the connected I. As are dismissed. No costs.

It has been brought to our notice that a number of writ petitions are
pending before the Karnataka High Court touching the matter in question H
530 SUPREME COURT REPORTS (1993) 1 S.C.R.
A raising various other questions. Since we have now upheld the validity of
the Twenty-sixth Amendment Act, the High Court may proceed to dispose
of all those pending writ petitions with reference to other issues, if any )I:: -
arising, in accordance with law and in the light of this judgment upholding
the Constitutional validity of the impugned Amendment Act.
B MOHAN. J. I had the advantage of perusing the judgment of my
!earned Brother Ratnavel Pandian, J. Tliough I am in respectful agree-
ment with him having regard to the importance of the constitutional issues
involved in this case, I would like to add the following:

C It was on the 15th day of August, 1947 when India attained freedom.
Pandit Jawahar Lal Nehru said in memorable words:

"When the world sleeps, India will awake to life and
freedom. A moment comes, which comes but rarely in
--
history, when we step out from the old to the new, when
D an age ends and when the §Olli of nation long suppressed,
finds utterance."

With the advent of freedom, India had to face problems of highest
magnitude. Of the many probhnes three were most pressing and urgent.
E The earlier they were resolved, the better it was for the country. The first·
of them was, to restore the communal harmony which had been impaired
to great extend. (ii) Princely States had to be integrated into the Indian ~
Union. (iii) There was necessity to frame a republican constitution which
would vibrate the new ideas.

F With the dawn of independence it was felt that in an independent
India the existence of princely states was an anachronism in the body
politic. Neither the past history nor economic and administrative realities
could justify the existence of a multitude of autonomous islands. They had
to be integrated with the rest of Indian Union to forge the unity of the
country. After the withdrawal of Bdtish Power the paramountcy lapsed to
G the princes. .They could decide either to join India or Pakistan or even to
stay independent. Sardar Vallabhbhai Pate~ the architect of Indian unity
and the master builder of destiny of nationalist India brought the princely
states into the Indian Union by means of judicious threats of force, appeals
to patriotism, warnings of anarcl)y and diplomatic persnasion. An invitation
H was extended to all the rulers of the State to work through the Councils of
RAGHUNATif v. U.0.1. [MOHAN, J.] 531
Constituent Assembly for the common good of all. A
This invitation was accepted on 19.5.1949. On this the White Paper
says at page 109:

"As the States came closer to the Centre it became dear
that the idea of separate Constitutions being framed for B
different constituent units of the Indian Union was a
legacy from the Rulers' polity which, could have no place
in democratic set-up. The matter was, therefore, further
-liscussed by the Ministry of States with the Premiers of
Unions and States on May 19_, 1949 and it was decided,
with their concurrence, that the Constitution of the States
c
should also be framed by the Constituent Assembly of
India and should form part of the Constitution of India."

It may not be correct to state that those who sat down together in
the Constituent Assembly and those who sent their represent:aives there, D
sat as conqueror and conquered, as those who ceded and as those who
absorbed, as sovereigns or their plenipotentiaries contracting aiiiances and
entering into treaties as high contracting parties to an act of State. They
were not there as sovereign and subject, or as citizen and alien. On the
contrary, they were the sovereign peoples of India, free democractic equals, E
forgoing the pattern of a new life for the common weal moving with a spirit
of all times.

When India became a Dominion every vestige of sovereignty was
abandoned, equally so, by the States. They all surrendered to the peoples
of the land who through their representatives in the Constituent Assembly F
hammered out for themselves a new Constitution in which all were citizens,
in a new order having but one tie, and owing but one allegiance, devotion,
loyalty, fidelity, to the Sovereign Democratic Republic that is India as was
eloquently stated by Justice Bose in Virendra Singh and Others v. State of
Uttar Pradesh, AIR 1954 SC 447 at p. 454:
G
" At one Stroke all other territorial allegiances were wiped
out and the past was obliterated except where exi)ressly
preserved; at one moment of time the new order was born
with its new allegiance springfi,g from the same source for
all, grounded on the same basis; the sovereign will of the H
532 SUPREME COURT REPORTS [1993] 1 S.C.R.

A peoples of India with no class, no caste, no race, no creed,
no distinction, ......."

The will of the Union Government was clearly expresssed in its
White Paper:

B At page 115 it is said:

"With the inauguration of the new Constitution the merged
States have lost all vestiges of existence as separate en-
tities11

c and at page 130:

"The new Constitution of India gives expression to the
changed conception of Indian unity brought about
-
by........ the unionisation of states ........"

D and at page 131:

"Unlike the scheme of 1935 the new Constitution is not an
a.liance betweeen democracies and dynasties but a real
union of the Indian people built on the concept of the
sovereignty of the people ......All the citizens of India,
E
whether residing in States or Provinces, will enjoy the
same fundamental rights and the same legal remedies to
enforce them. In the matter of their constitutional
relationship with the Centre and in their internal set-up,
the States will be on a par with the Provinces. The new
F Constitution therefore finally eradicates all artificial bar-
riers which separated the. States from Provinces and
achieves for the first time the objective of a strong, united ~-
and democratic India built on the true foundations of a
cooperative enterprise on the part of the peoples of the
G Provinces and the States alike."

The princes were first stripped of their three virtal fucntions,
defence, foreign affairs and communications. They were then urged to
transfer internal government to popular movements inside the respective ·..-
states. In recompense they were allowed to retain their titles, dignities and
H immunities and were given generous privy purses. It was in this context
RAGHUNATII v. U.0.1. [MOHAN, J.] 533
Articles 291 and 362 were brought into the Constitution. A

Likewise, Article 366 (22) defined the "Ruler".

On 2nd September, 1970, a Bill (Twenty-fourth Amendment Bill,
1970) was introduced omitting these articles. Though it was passed in the B
Lok Sabha it could not obtain the requisite majority of two-thirds of the
members present in voting in the Rajya Sabha. Therefore, the motion for
introduction of the Bill was declared lost. Immediately thereafter the
President of India in exercise of his power under clause (22) of Article 366
of the Constitution signed an instrument withdrawing recognision of all the
Rulers. Thereupon, the order was challenged in this Court under Article C
32 of the Constitution of India. In H.H. Maharajatlhiroja Madhav Roa Jiwaji
Rao Scindia Bahadur & Ors. v. Union of India, (1971) 3 SCR 9 it was held
that the order of the President derecognising the Rulers was ultra vires and
illegal. (In the later part of this judgment the ratio of this ruling will be
discussed in detail). In order to render this ruling ineffective the Twenty- D
Sixth Amendment to the Constitution was introduced. The following tabu-
lated statement will bring out the legal postition as is obtainable after
Twenty Sixth ~endment.
Articles before Articles after
26th Amendment 26th Amendment E
Article 291 : 291. (Privy purse sums of
Where under any covenant or Rulers) Rep. by the Constitution
agreement entered into by the Ruler (Twenty-sixth Amendment) Act,
of any Indian State before the 1971, Section 2.
commencement of this Constitution,
the payment of any sums, free of tax, F
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, G
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.
H
534 SUPREME COURT REPORTS [1993] 1 S.C.R.
A Article 36'2: 362. (Rights and µrivileges of Rulers
In excrc 'sc of the power of of Indian States). Rep. by the
Parliament or of the Legislature of a Constitution (Twl'nty Amendment)
State to make laws or in the exercise Act, 1971 Section 2.
of the executive power of the Union
or of a State, due regard shall be had
B
to the guarantee or assurance given
under any such covenant or
agreeable as is referred in article
291 with respect to the personal
rights, privi-leges and dignities of
c the Ruler of an Indian State.
363-A. Recog11i1 ion granted to
Rulers of Indian Slates to cease and
privy purses to be c,holished-

D
N owithstanding 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
(Twenty-sixth Amendment) Act,
E 1971, was recognised by the ~-
President as the Ruler of an Indian
State or any person who, at any time
before such commencement, was
recogn\sed by the President as the
F successor of s!lch 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
G
Amendment ) Act, 1971, privy purse
is abolished and all rights, liabilities
and obligations in respect of privy
purse are extinguished and accor-
dingly the Ruler or, as the case may
H
RAGHUNATII v. U.0.1. [MOHAN, J.] 535
be, the successor of such Ruler, A
referred to in clause (a) or any other
person shall not be paid and sum as
privy purse.
Article 362(22): "Rulers" means the Prince, Chief or
"Ruler" In relation to an Indian State other person who, at any time B
means the Prince, Chief or other before the commencement of
person by whom any such covenant the Constitution (Twenty-sixth
or agreement as is referred to in Amendment) Act, 1971, was
clause ( i) of Article 291 was entered recognised by the President as
into and who for the time being is the Ruler of an Indian State or
any person who, at any time C
... recognised by the President as the
Ruler of the State, and includes any before such commencement,
person who for the time being is was recognised by the President
recognised by the President as the as the successor of such Rulers.
successor of such Ruler.
D
The validity of this amendment was challenged which came up for
consideration in His Holiness Keasavananda Bharati Sripadagalavaru v.
State of Kera/a, [1973] Suppl. SCR 1. The Court after holding that the basic
structure of the Constitution cannot be amended directed by its judgment
dated 24th April, 1973 that the Constitution Bench will determine the
validity of the Constitution (Twenty-sixth Amendment) Act, 1971 in ac- E
cordance with law and the cases are remitted to the Constitution Bench
for disposal in accordance with law.

This is how the matter comes before us.

Mr. Soli J. Sorabjee, learned counsel for the petitioners relying on F
Madhav Rao's case (supra) makes the following submissions.

Articles 291 and 362 embodied and guaranteed pledges to the
Rulers. They arc based on elementary principles of Justice. The underlying
purpose of these articles was to facilitate stabilization of the new order and G
to ensure organic unity of India.

This Court in no unmistakable terms said that Articles 366(22), 291
and 362 are integral part of the constitutional scheme. The institution of
rulership is an integral part,of the constitutional scheme. This enunciation
of law is by a Bench of 9 Judges and is binding. H
536 SUPREME COURT REPORTS (19931 I S.C.R.
A ··integral" means essential. Such a provision, therefore, could con-
stitute 1he basic feature of the Constitution. Conseqently, the total abolition ,..
of tl1csc provisions of Constitution would necessarily damage its essential
or basic feature.

Therefore, if the amendment damages the basic or an cs:;cnti,11
B fea1 urc· .,r the Cunstitulion it would be beyond the constituent power of the
Parliament as laid down in Wama11 Rao a11d others v. Unio11 of India a11d
ot/Jas. ( 19801 3 SCC 587 @ 588-89 as also in Maharao Sahib Shri Blrim .-J_
Sing/Jji v. U11io11 of India & Ors., (1981] 1 SCC 166 @ 212.

C The correct approach is to examine in each case the place 11f the
particular feature in the scheme of our Constitution, its object and purpose
as was held in Indira Nehru Gandhi v. Raj Narai11's case, (1975] Suppl.
sec P"gc 1 @ 252.
It was by the incorporation of Articles 291 and 362 that the Constilu- +
D tion makers were able to get the willing consent and cooperation of the
Rulers lo be brought within the fold of the Constitution as laid down by
this Court in Madhav's Rao case (supra). Without the accession of the
Rulers the Constitution would have been basically different. Equally, the
territory of India, its population, the composition of the State Legislature
E and Assemblies and the Lok Sabha and Rajya Sabha would be radically ~
different.

The learned counsel seeks to emphasise the nature and the character
of guarantees contained in Articles 291 and 362. When they came to be
incorporated it was nothing more than the statutory recognition to the
F solemn promises held out by Government of India. In order to secure a
truly democratic form of Government in the united independent India
these solemn promises were meant to be honoured. They were intended to
incorporate a just quid pro quo for surrender by them of their authority
and powers and dissolution of their States.
G By repeal of these articles it has resulted in nullification of a just
quid pro quo. The underlying purpose of doing justice to the Rulers has
been subverted. Breach of faith has been sanctioned. Consequently, the
character and personality of the Constitution have been changed from one
of honouring solemn promises and doing justice into one of breaking
H solemn pledges.
RAGHUNATH v. U.0.1. [MOHAN, J.] 537
One of the tests of identifying the basic feature is, whether the A
identity of the Constitution has been changed. As laid down in Kesavanan-
da Bharati's case (supra). the question to be addressed is, can it maintain
its identity if something quite different is substituted? 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
B
should have an instant or immediate effect nn the basic structure. It is
enough if it damages the essential feature as laid down in Indira Nehru
Ga1uihi's case (supra). 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. As a matter of fact in Bhim
Singhji's case (supra), it has been laid down that if a statutory provision C
Section 27 of the Urban Land (Ceiling & Regulation) Act, 1976 confers
unfettered discretion and thereby violates Article 14 of the Constitution, it
can also damage the basic structure of the constitution. For all these
reasons, it is submitted that the impugned amendment is bad in law.

Mr. D.D. Thakur, learned counsel for the petitioner supporting Mr. D
Soli J. Sorabjee, urges that one of the most important features of the Indian
Constitution is morality. By the impugned amendment, morality is
destroyed because Article 361 before the amendment contained a solemn
promise to the future generat;ons. By the impugned amendment the solemn
promise is breached. E
The privy purses are charged upon the consolidated fund of India
and therefore, goes out of control of Parliament.

These privy purses are payable during the life time of Maharajas or
Princes. If, therefore, it is temporary in nature and is to last only for a F
stated period, would the Parliament have intended to amend the law? If
that was the intention of incorporation of these provisions in the Constitu-
tion, the amendment would run counter to such an intention and therefore,
cannot be supported.

Article 14 guarantees equality which forbids unfair treatment. Where G
by reason of this amendment, the petitioner is subject to unfair treatment,
there is an impairment of basic structure since equality is a basic structure.
In connection with this submission, the learned counsel cites case dealing
with equality as Ajay Hasia v. Khalid Mujib Sehravardi, [1981] 1 SCC 722
and Minerva Mills Ltd. v. Union of India & Ors., [1981] 1 SCR 206 and H
538 SUPREME COURT REPORTS [1993] 1 S.C.R.
A [1983] 3 SCR 718.
In any event, privy purse is property. If the petitioner is deprived of
the same, it is unfair and is violative of basic structure. Even from that point
of view, the amendment cannot be supported.

B Mr. A.K. Ganguli, learned counsel on behalf of the intervenor in I.A.
No. 3/92 in W.P. 351/72 would submit that under Article 291 of the
Constitution, payment of any sum has been guaranteed or assured. This
guarantee is of great importance. The guarantee would mean continuity of
provision. Article 32(4) also contains the word 'guarantee'. The same
C meaning must be ascribed to guarantee Under Article 291.

It is not without purpose that the privy purse is charged upon the
consolidated fund of India as seen from Article 112(g). In this connection,
reference may be made to O.N. Mohindroo v. District Judge, Delhi, [1971]
III SCC 9. As to what would constitute the basic structure, could be +
D gathered from Kesavananda Bharati Sripadagalvarn's case (supra), par-
ticulary, the passages occurring at l'aras 582-83, 631, 632, 1159 & 1473.

Mr. R.F. Nariman, learned counsel appearing for petitioner No. 1
would draw our attention to Section 87(b) of the Code of Civil Procedure.
E That provision lists the immunities of foreign rulers. That was challenged as -..;-
violative of Article 14 of the Constitution. That challenge was repelled in
Mohan/a/ Jain v. His Highness Maharaja Shri Swai Man Singhji, [1962] I SCR
702. On the same line of reasoning, it should be held, where by the impugned
amendment, the princes who form a class is sought to be destroyed there is
violation of Article 14. Wherever unequals are treated as equals, this Court
F has disapproved of such treatment as seen from Ramesh Prasad Singh v. State
of Bihar& Ors., [1978] 1 SCR 787 at page 793 and Nagpur Improvement Trost
&Anotherv. Vithal Rao& Ors., [1973] III SCR 39.

If, therefore, there is violation of Article 14 that would be offensive of
G basic structure as seen from Minerva Mills Ltd. case (supra). It is added that
the impugned amendment is violative of Article 51(c) of the Constitution.

The learned Attorney General in countering these submissions ad-
vanced on behalf of the petitioners, would argue that the agreements with
the princes were pre constitutional agreements. Admittedly, they were
H entered into for the purposes of facilitating integration of the nation and
RAGHUNATH v. U.0.1. (MOHAN, J.) 539
creating the constitutional documents for all citizens including those of the A
. native states. The history of the development relating to the merger agree-
ments and the framing of the Constitution clearly shows that it is really the
union of the people of the native states with the people of the erstwhile
British India. The instruments of accession are the basic documents and
not the individual agreements with the rulers. Therefore, to contend that
B
the agreements were entered into by the rulers as a measure of sacrifice
by them is untenable.

Secondly, the nature of the covenant is not that of a contract since a
contract is enforceable at law. On.the contrary, these covenants are made
non-justiciable as seen from Articles 363. C
The covrnants arc political in nature and no legal ingredients as the
basis caa be read into these agreements as laid down in Usman Ali Khan
v. Sagar Mal, (1965] 3 SCR 201.
+ The guarantees in Articles 291 and 362 are guarantees for the D
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 E .
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.

The treaties/covenants/etc. entered into between the Union of India
and the Rulers were as a result of political action. No justiciable rights were F
intended to be created. Article 363 as it stood in its original form spells
out this proposition. The rights and privileges in the Articles prior to the
26th Amendment were as acts of State of the Government and not in
recognition of the sacrifies of the rulers. By no means, can it be contended
that these guarantees given to the rulers were ever intended to be con- G
tinued indefinitely.

Turning to basic feature, the proper test for determining basic fea-
ture is to find out what are not basic features. Rights arising out of
covenants which were non-justiciable cannot be regarded as basic features.
Where, therefore, Article 363 makes these features non-justiciable, the H
540 SUPREME COURT REPORTS (1993) 1 S.C.R.
A question of basic feature does not arise.

It is equally incorrect to contend that the amendment is violative of
Article 14. There is no such violation. It is not that by the proposed
amendment, Article 14 is amended. Whether a provision is violative of
basic feature of the Constitution has to be decided on the language of the
B provisions.

The observations in Madhav Rao's case have to be read in the context
of the Constitution as it then stood. The Court did not intend limiting the
amending power.
c The 26th Amendment does not in any manner amend the Constitu-
tion impairing a basic structure.

The right to property even as a fundamental right was not a part of
the basic structure. Even conceding that pre 26th Amendment right to privy +
D purses to be property, it was a right capable of being extinguished by
authority of law.

A permanent retention of the privy purses and the privileges of the
rulers would be incompatible with a sovereign and republican form of
E Government. Such a retention would also be incompatible with the
egalitarian form of the Government envisaged by Article 14.

The words 'integral part of the scheme of the Constitution' in the
majority judgment in Mudhavrao's case (supra) are not the same as basic
structure. They have to be read in the context of a challenge to an
F ordinance which sought to render nugatory certain rights guaranteed in the
Constitution then existing. In any event, the constitutional bar of Article
363 denudes the jurisdiction of any court in relation to disputes arising
from covenants and treaties executed by rulers. Hence, it is idle to contend
that the impugned amendment in any manner interferes with the basic
G structure of the Constitution.

Usman Ali's case (supra) is still good law. What is overruled by
Madhav Rao's case (supra) is the political character. Articles 291, 362,
366(22) could never have intended to form a basic structure. They have no
overall applicability permeating throughout the entire Constitution so to
H say that their absence will change the nature of the Constitution. The
pr -
RAGHUNATII v. U.0.1. [MOHAN, J.] 541
intrinsic evidence is the availability of a machinery for enforcement. In the A
case of the rights guaranteed under Part III of the Constitution, a
machinery is available for the enforcement. On the contrary, such a
machinery for enforcement of privy purses is not available under Article
363. Therefore, it is submitted that it is a inferior right than the fundamen-
tal right. Hdnce, it cannot. be called a basic structure at all. As to what is
B
the meaning of basic structure, reforence must be made to Kesavanand's
case (supra).

The learned Attorney General also draws our attention to an Article
of K. Subba Rao, Ex-Chief Justice ot India in (1973] 2 SCC page 1 journal
section entitled as "The two judgments: Golaknath and Kesavananda C
Bharati 11

- •

As to the morality part of the impugned amendment, it is urged that
there is nothing immoral about it. Where the changed situation and anxiety
to establish an egalitarian society require the change of law it is valid.
D
In reply to these submissions, Mr. Soli J. Sorabjee would contend
that the submissions of learned Attorney General that the guarantees under
Articles 291 and 362 are unenforceable in view of Article 363 are not
tenable in view of the judgment of this Court in Madhav Rao's case (supra). /

E
It is also not correct to argue that it is an act of State and therefore,
no relief can be granted in respect of matters covered by it. Such a
submission has not been accepted by this court as seen from Madhav Rao's
case (supra) at pages 53; 90-93.

Strong reliance was placed on Usman Ali Khan's case (supra) that F
the privy purses are in the nature of compensation. The observations relied
upon by the learned Attorney General have been regarded by the majority
in Madhav Rao case as not only obiter but also incorrect as seen from
Usman Ali Khan's case at pages 98, 145 & 193. The submission that the
privy purses are mere privileges is contrary to the decision of Madhav Rao's G
case (supra) since these have been held to be fundamental rights guaran-
teed under Articles 19(1)(b) and 31.

~ Having regard to the above submissions, the sole question would be
whether the 26th Amendment is beyond the constituent power of the
Parliament ? To put it in another words, does the amendment damage any H

•
542 SUPREME COURT REPORTS [1993) 1 S.C.R.
A basic or essential feat;ire of the Constitution ?
The law prior to and after 26th Amendment has already been set out
in the tabulated statement. As coulj be seen by the impugned amendment,
Articles 291 and 362 have come to be omitted. A new Article 363A has
come to be inserted. The origind c:ause 22 of Article 366 has co!De to be
B substituted by a new clause. In pith and substance, this amendment seeks
to terminate the privy purses and privileges of the Princes 0 f !he former
Indian States. It also seeks to terminate expressly the recognition already
granted to them as guaranteed and assured under Articles 291 and 362 of
the Constitution. Therefore, the impugneJ amendment has withdrawn the
C guarantees and ilssurances and abolished the privy purses, personal rights,
privileges and dignities. The validity of the amendment is attacked as
under:

(i) Articles 291, 362 and 366(22) of the Constitution form an impor-
tant basic structure and demolition of these articles would amount to
D violation of basic structure. +
(ii) The covenants entered into are in the nature of contracts backed
by constitutional guarantees. They are further aflirrned by making the privy
purses an expenditure charged upon the consolidated fund of India. Such
E being the position, a breach of the covenant cannot be made since they
were intended lo incorporate a just quid pro quo which has come lo be -{-
nullified by the impugned ame.ndment.

(iii) It is arbitrary and unreasonable and is, therefore, violative of
Article 14 and consequently basic structure.
F
(iv) It is not moral.

In order to appreciate the above points, it is necessary to set out the
background in which the Articles came to be incurporated in the Constitu-
G tion. II was on July 5th, 1947, Sardar Vallabhbhai Patel exhorted as under:

"This country, with its institutions, is the proud heritage
of the people who inhabit it. It is an accident that some
live in the States and some in British India, but all alike
partake of its culture and character. We are all knit
H together by bonds of blood and feeling no less than of
RAGHUNATII v. U.0.1. [MOHAN, J.] 543
self-interest. None can segregate us into segments; no A
impassable barriers can be set up between us. I suggest
that it is, therefore, better for us to make laws sitting
together as friends than to make treaties as aliens. I invite
my friends, the Rulers of States and their people to the
councils of the Constituent Assembly in this spirit of
B
friendliness and cooperation in a joint endeavour, inspired
by common allegiance to our motherland for the common
good of us all.

We are at a momentous stage in the history of India.
By common endeavour, we can raise the country to a new c
greatness while lack of unity will expose us to fresh
calamities. I hope the Indian States will bear in mind that
the alternative to co-operation in the general interest is
anarchy and chaos which will overwhelm great and small
in a common ruin if we are unable to get together in the
minimum of common tasks. Let not the future generation D
curse us for having had the opportunity but failed to turn
it to our mutual advantage. Instead, let it be our proud
privilege to leave a legacy of mutually beneficial relation-
ship which would raise this sacred land to its proper place
amongst the nations of the world and turn it into an abode E
of peace and prosperity."

While clarifying the position, he spokr on 13th November, 1947:

"The State does not belong to any individual.
Pararnountcy has been eliminated, certainly not by the F
efforts of the Princes, but by that of the people. It is
therefore, the people who have got the right to assert
themselves and the Nawab cannot barter away the popular
privilege of shaping its destiny.'
G
In this connection, it is worthwhile to quote the following from 'The
framing of India's Ciinstitution" by B. Shiva Rao at page 520 as under :

'The Indian National Congress was in the past well-
known for its sympathy with the Indian States People's
Conference, a body which sought to establish popular H
544 SUPREME COURT REPORTS [1993] 1 S.C.R.
A governments in the States. Jawaharlal Nehru himself was
closely associated with this movement. The start of the
proceedings in the Constituent Assembly was not par-
ticularly propitious for cooperation between the Assembly
and the Rulers. Moving the Objectives Resolution on
December 13, 1946, in the Constituent Assembly (in which
B
neither the Indian States nor the Muslim League were at
that time represented) Nehru explained that the resolution
did not cern itself with what form of Government the
States had or "whether the Rajas and Nawabs will continue
or not". He also emphasized that if a part of the Indian
c Republic desired to have its own administration it was
welcome to have it. But at the same time he made it clear
that the final decision in the matter whether or not there
should be a monarchical form of Government in the States
was one for decision by the people of the States."
D The political background in which the Articles came up to be incor-
porated in the Constitution has already been set out. At this stage, what
requires emphasis is that the people brought' about the integration of the
States with the erstwhile British India which came to be freed from the
foreign yoke. This is very clear from the speech of Sardar Vallabhbhai Patel
E on 13th November, 1947 quoted above.

It was in recognition of the privileges and powers which existed
hitherto the privy purses came to be conferred. The articles assured the
payment of privy purses.
F
Nature of What exactly is a nature of privy purse in the realm of
Privy Purse law could be gathered from Usman Ali Khan's case (supra)
at page 206 as under :

"The third contention of Mr. Pathak raises the question
G whether an amount payable to a Ruler of a former Indian
State as privy purse is a political pension within the
meaning of Section 60(1)(g), Code of Civil Procedure. The
word "pension" in Section 60(1)(g), Code of Civil Proce-
dure implies periodical payments of money by the Govern-
H ment to the pensioner. See Nawab Bahadur of
RAGHUNATH v. lJ.0.1. [MOHAN, J.] 545
Mursl1idabad v. Kamani Industrial Bank Ltd., (4) 1931 LR A
58 IA. 215, 219 & 220 and in Bishamber Nath v. Nawab
-IL Imdad Ali Khan, 1890 L.R. 17 I.A. 181, 186, Lord Watson
observed:

"A pension which the Government of India has given
B
a guarantee that it will pay, by a treaty obligation con-
tracted with another sovereign power, appears to their
Lordships to be, in the strictest sense, a political pension.
The obligation to pay, as well as the actual payment of the
pension must, in such circumstances, be ascribed to
reasons of State policy.' c
Now, the history of the integration· and the ultimate ab-
sorption of the Indian States and of the guarantee for
payment of periodical sums as privy purse to the Rulers
of ·the former Indian States are well-known. Formerly D
Indian States were semi-sovereign vassal States under the
suzerainty of the British Crown. With the declaration of
Independence, the paramountcy of the British Crown
lapsed as from August 15, 1947 and the Rulers of Indian
States became politically independent sovereigns. The In-
dian States parted with their sovereignty in successive E
-'!- stages, firstly on accession to the Dominion of India,
secondly on integration of the States into sizeable ad-
ministrative units and on closer accession to the Dominion
of Indian and finally on adoption of the Constitution of
India and extinction of the separate existence of the States F
and Unions of States. During the second phase .of this
~~
political absorption of the States, the Rulers of the Mad-
hya Bharat States including the Ruler of Jaora State
entered into a Covenant on April 22, 1948 for the forma-
tion of the United State of Gwalior, Indore and Malwa
(Madhya Bharat). By Article II of the Covenant, the
G
Covenanting States agreed to unite and integrate their
territories into one State. Article VI provided that the
Ruler of each Covenanting State shall not later than July
1, 1948 make over the administ<ation of the State to the
Rajprarnuckh and thereupon all rights, authority and juris- H
546 SUPREME COURT REPORTS (1993) l S.C.R.
A diction belonging to the Ruler and appertaining or in-
cidental to the Government of the State would vest in the
United State of Madhya Bharat. Article XI (1) provided
that "the Ruler of each covenanting State shall be entitled
to receive annually from the revenues of the United State
for his privy purse the amount of specified against that
B Covenanting State in Schedule I." In Schedule I, a sum of
Rs. 1,75,000 was specified against the State of Jaora.
Article XI(2) provided that the amount of the privy purse
was intended to cover all the expenses of the Ruler and
his family including expenses of the residence, marriage
c and other ceremonies and neither be increased nor
reduced for any reason whatsoever. Article XI(3)
provided that the Rajpramukh would cause the amount to
be paid to the Ruler in four equal instalments at the
beginning of each quarter in advence. Article XI( 4)
provided that the amount would be free of all taxes
D
whether imposed by the Government of the United State
or by the Government of India. Article XIII of the
Covenant secured to the ruler of each Covenanting State
all personal privileges, dignities and titles then enjoyed by
them. Article XIV guaranteed the succession, according
E to law and custom, to the gaddi of each Covenanting State
and to the personal rights, privileges, dignities and titles
of the Ruler. The covenant was signed by all the Rulers
of the covenanting state. At the foot of the Covenant, it
was stated that "The Government of India thereby concur
F in the above Covenant and guarantee all its provisions."
In confirmation of this consent and guarantee, the
Covenant was signed by a Secretary to the Government
of India.

On the coming into force of the Constitution of India,
G the territories of Madhya Bharat became an integral part
of India. Article 291 of the Constitution provided :

"Where under any covenant or agreement entered into
by the Ruler of any Indian State before the commence-
H ment of this Constitution, the payment of any sums, free
,._.
RAGHUNATII v. U.0.1. [MOHAN, J.) 547
of tax, has been guaranteed or assured by the Government A
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
(b) the sums so paid to any Ruler shall be exempt from
11
all taxes on income.

In view of the guarantee by the Government of the
Dominion of India to the Ruler of Jaora State in the
Covenant for the formation of the United State of Madhya
c
Bharat, the payment of the sums specified in the covenant
as privy purse to the Ruler became charged on the Con-
solidated Fund of India, and became payable to him free
_..,., from all taxes on income. Article 362 provides that in the
exercise of the legislative and executive powers, due D
regard shall be had to the guarantee given in any such
covenant as is referred to in Article 291 with respect to
the personal rights, privileges and dignities of the Ruler
of an Indian State. Article 363(1) provides that not-
withstanding anything contained in the Constitution, the
E
-'r Courts would have no jurisdiction in any dispute arising
out of any provision in any covenant entered into by any
Ruler of an Indian State to which the Government of the
Dominion of India was a party, or in any dispute in respect
of any right accruing under or any liability or obligation
arising out of any of the provisions of the Constitution F
relating to any such covenant. Article 366(22) provides
---.' that the expression 'Ruler" in relation to an Indian State
means a person by whom the covenant referred to in
Article 299(1) was entered into and who for the time being
is recognised by the President as the Ruler of the State,
G
and includes any person who for the time being is recog-
nised by the President as the successor of such Ruler.

Now, the covenant entered into by the Rulers of Mad-
hya Bharat by which they gave up their sovereignity over '
their respective territories and vested it in the new United H
548 SUPREME COURT REPORTS (1993) 1 S.C.R.
A State of Madhya Bharat. The Covenant was an act of State,
and any violation of its terms cannot form the subject of
any action in any municipal courts. The guarantee given by
the Government of India was in the nature of a treaty
obligation contracted with the sovereign Rulers of Indian
States and cannot be enforced by action in municipal courts.
B ls sanction is political and not legal. On the coming into
force of the Constitution of India, the guarantee for the
payment of periodical sums as privy purse is continued by
Article 291 of the Constitution, but its essential political
character is preserved by Article 363 of the Constitution,
c and the obligation under this guarantee cannot be en·
forced in any municipal court. Moreov.er, if the President
refuses to recognise the person by whom the covenant was
entered into as the Ruler of the State, h~ would not be
entitled to the amount payable as privy purse under Ar·
tide 291. Now, the periodical payment of money by the
D
Government to a Ruler of a former Indian State as privy
purse on political considerations and under political sanc-
tions 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 Proce·
E dure. The use of the expression 'purse' instead of the
expression ''pension" is due to historical reasons. T71e privy
purse satisfies all the essenual characteristics of a political
pension, and as such, is protected from execution under
Section 60(1)(g), Code of Civil Procedure. Moreover, an
F amount of the privy purse receivable from the Govern-
ment cannot be said to a debt or other property over which
or the proceeds of which be has disposing power within
the main part of Section 60(1), Code of Civil Procedure.
It follows that the third contention of Mr. Pathak must be
accepted, and it must be. held that the amounts of the privy
G purse are not liable to attachment or sale in execution of
the respondent's decree." (emphasis supplied)

This case is an authority, for the proposition that it is a political
pension. The question is whether this dictum bas been overruled by Mad·
H hav Rao's case (supra).
RAGHUNATII v. U.O.l. [MOHAN, J.) 549
At page 145 of the said decision, it is held : A
'On the coming into force of the Constitution of India,
the guarantee for payment of periodical 6Ums as privy
purse is continued by Article 291 of the Constitution, but
its essential political character is preserved by Article 363
of the Constitution and the obligation under this guarantee B
cannot be enforced in any municipal court. With all
respect, it appears to me that all the above was not strictly
necessary for the decision of the case and it would have
been enough to say that privy purse was a pension - a
word which according to the Oxford Dictionary means, 'a c
periodical payment made specially by a Government, com-
pany, employer etc.' - which was political in nature
because it was based on a political settlement. However
it was not the expression of opinion of only one learned
Judge but the unanimous view of three learned Judges of
this Court. In Kanwar Shri Vir Rajendra Singh v. Union of D
India, (1970) 2 SCR 631 a Bench of another five learned
Judges of this Court have pronounced on the non-enfor-
ceability of the provision for payment of privy purse under
Article 291 by resort to legal proceedings. In my view, on
the reasoning already given by me it must be held that the E
payment of privy purse although placed on a pedestal
which defies annibiliation or fragmentation as long as the·
above-mentioned constitutional provisions enure is still
subject to the constitutional bar of non-justiciability and
cannot be upheld or secured by adjudication in a court of
law including this Court.
F

Further, at page 193 of the said decision, it is held :

'The learned Judges in that case had no occasion to
consider nor did they go into the scope of Article 291 or
G
Article 363. Every observation of this Court is no doubt,
entitled to weight but an obiter, cannot take the place of
the ratio."

A careful reading of the above shows what is overruled is the political
character and not that the privy purse is not a political pension. Even H
550 SUPREME COURT REPORTS (1993) 1 S.C.R.
A otherwise, if really, this dictum has been overruled, the very basis of the
judgment of Usman Ali Khan's case (supra) would disappear. Then the ~_
reasoning in relation to the attachability under Section 60 of Code of Civil
Procedure would be incorrect. Be that so, what is argued by Mr. Soli J.
Sorabjee is the guarantee under Article 291 is enforceable notwithstanding
B Article 363. Therefore, this discussion need not detain us. As to the scope
of Article 363, it co~ld be culled from Madhav Rao's case (supra) at
page 99:

"A dispute as to the right to receive the privy purse, is
therefore not a dispute arising out of the covenant within
c the first limb of Article 363, nor is it a dispute with regard
to a right accruing or obligation arising out of a provision
of the Constitution relating to a covenant.

. But since the right to the privy purse arises under
Article 291 the dispute in respect of which does not fall
D within either clause, the jurisdiction of the Court is not
excluded in respect of disputes relating to personal rights
and privileges which are granted by statutes."

One thing which must be borne in mind while appreciating the scope
E of Madhav Rao's case (supra) is what occurs at page 75 as under: ~-

Scope of Scindia "Whether the Parliament may by a constitutional amend-
Ruling men/ abolish the rights and privileges accorded to the Rulers
is no4 and cannot be, debated in this petition, for no such
constitutional amendment has been made. The petitioner
F
challenges the authority of the President by an order pwporting
to be made under Article 366(22) to withdraw recognition of
Rulers so as to deprive them of the rights and privileges to
which they are entitled by virtue of their status as Rulers."
(emphasis supplied)
G
This Court had no occasion to go into the scope of constitutional
amendment like the present one. Therefore, all reasons addressed for
striking down the presidential order must be confmed only to the authority
of the President to issue the order under Article 366(22) of the Constitu-
H tion.
RAGHUNATII v. U.0.1.-(MOHAN, J.) 551
BASIC STRU- This takes us to the power of amendment conferred A
CTURE under Article 368. That power of amendment is unlimited
except that the basic structure of the Constitution cannot
be amended. What then is the basic structure ?

In Kesavananda's case (supra), Sikri, CJ. stated at page 165 as B
under:
\
~-
Whether "The learned Attorney-General said that every
Articles 291, provision of the Constitution is essential; otherwise, it would
362, 366(22) not has been put in the Constitution. This is true. But this
does not place every provision of the Constitution in the C
same position. The true position is that every provision of
the Constitution can be amended provided in the result the
basic foundation and structure of the constitution remains
the same. The basic structure may be said to consist of the
following features : D

(i) Supremacy of the Constitution;

(ii) Republican and Democratic form of Government;
E
(iii) Secular character of the Constitution;

(iv) Separation of powers between the Legislature, the
executive and the judiciary;

F
(v) Federal character of the Constitution.

The above structure is built on the basic foundation,
i.e. the dignity and freedom of the individual. This is of ·
supreme importance. This cannot by any form of amend-
ment be destroyed. G

The above foundation and the above basic features are
easily discernible not only from the preamble but the
whole scheme of the Constitution, which I have already
discussed." H
552 SUPREME COURT REPORTS (1993] 1 S.C.R.
A Shelat & Grover, JJ. in the said judgment stated at page 280 as
under:

"The basic structure of the Constitution is not a vague
concept and the apprehensions expressed on behalf of the
respondents that neither the citizen nor the Parliament
B would be able to understand it are unfounded. If the
historical background, the Preamble, the relevant
provisions thereof including Article 368 are kept in mind
there can be no difficulty in discerning that the following
can be regarded as the basic elements of the constitutional
c structure. (These cannot be catalogued but can only be
illustrated).

1. The supremacy of the Constitution.

2. Republican and Democratic form of Government and
D sovereignity of the country.

3. Secular and federal character of the Constitution.

4. Demarcation of power between the legislature, the
executive and the judiciary.
E
5. The dignity of the individual secured by the various
freedoms and basic rights in Part Ill and the mandate to
build a welfare State constrained in Part IV.

6. The unity and the integrity of the nation."
F
Hedge & Mukherjea, JJ. in the said judgment stated at page 314 as
under :

"We find it difficult to accept the contention that our
Constitution makers after making immense sacrifices for
G achieving certain ideals made provision in the Constitution
itself for the destruction of these ideals. There is no doubt
as men of experience and sound political knoWtedge, they
must have known that social, economic and political chan-
ges are bound to come with the passage of time and the
H Constitution must be capable of being so adjusted as to '
RAGHUNATII v. U.0.1. [MOHAN, J.) 553
be able to respond to those new demands. Our Constitu- A:
tion is not a mere political document. It is essentially, a
social document. It is based on a social philosophy and
every social philosophy like every religion has two main
features, namely, basic and circumstantial. The former
remains constant but the latter is subject to change. The
B
core of a religion always remains constant but the prac-
tices associated with it may change. Likewise, a Constitu-
tion like ours contains certain features which so essential
that they cannot be changed or destroyed. In any event it
cannot be destroyed from within. In other words, one
cannot legally use the Constitution to destroy itself. U oder c
Article 368 the amended Constitution must remain 'the
Constitution' which means the original Constitution.
When we speak of the 'abrogation' or 'repeal' of the
Constitution, we do not refer to any form but to substance.
If one or more of the basic features of the Constitution
D
are taken away to that extent the Constitution is abrogated
or repealed. If all the basic features of the Constitution
are repealed and some other provisions inconsistent with
those features are incorporated, it cannot still remain the
Constitution referred to in Article 368. The personality of
the Constitution must remain urichanged." (emphasis sup- E
plied).

Further, at page 322, it was stated as under :

"On a careful consideration of the various aspects of F
the case we are convinced that the Parliament has no
power to abrogate or emasculate the basic elements or
fundamental features of the Constitution such as the
sovereignity of India, the democratic character of the
individual freedoms secured to the citizens. Nor has the G
Parliament the power to revoke the mandate to build a
welfare State and egalitarian society.'

Jaganmohan Reddy, J. in the said judgment stated at page 517 as
under: H
554 SUPREME COURT REPORTS (1993) 1 S.C.R.
A "I will now consider the question which bas been
strenuously contended, namely, that there are no essential Al,-
features, that every feature in the Constitution is essential,
and if this were not so, the amending power under the
Constitution will apply only to non-essential features
B Miich it would be difficult to envisage was the only pur-
pose of the fra~ers in inscribing Article 368 and that,
therefore, there is no warrant for such a concept to be
...,,:.
read into the Constitution. The argument at first flush is
attractive, but if we were to ask ourselves the question
whether the Constitution has any structure or is structure-
c less or is a "jelly fish" to use an epithet of the learned
Advocate for the petitioner, the answer would resolve our
doubt. If the Constitution is considered as a mechanism,
or call it an organism or a piece of constitutional engineer-
ing, whichever it is, it must have a structure, or a composi-
D tion or a base or foundation. What it is can only be
ascertained, if we examine the provisions which the
Hon'ble Chief Justice has done in great detail after which
he has instanced the features which constitute the basic
structure. I do not intend to cover the same field once
E again. There is nothing vague or unascertaioable in the --<\·
preamble and if what is stated therein is subject to this
criticism _it would be equally true of what is stated in
Article 39(b) & (c) as these are also objectives fundamen-
ta! in the governance of the country which the State is
F enjoined to achieve for the amelioration and happiness of
its people. The elements of the basic structure are indi-
cated in the preamble and translated in the various
provisions of the Constitution. The edifice of our Constitu-
tion is built upon and stands on several props, remove any
G of them, the Constitution collapses. These are: (1)
Sovereign pemocratic Republic; (2) Justice, social,
economical and political; (3) Liberty of thought, expres-
sion, belief, faith and worship; (4) Equality of status and '~
of opportunity. Each one· of these is important and col-
H lectively they assure a way of life to the people of India
RAGHUNAlH v. U.0.1. [MOHAN, J.) 555
which the Constitution guarantees. To withdraw any of the A
above elements the structure will not survive and it will
-~
not be the same Constitution, or this Constitution nor can
it maintain its identity, if something quite different is
substituted in its place, which the sovereign will of the
people alone can do.' B
Palekar, J. in the said judgmont would say at page 619 :
-::...
"Since the 'essential features and basic principles'
referred to Mr. Palkhivala are those culled from the
provisions of the Constitution it is clear that he wants to c
divide the constitution into parts - one of the provisions
containing the essential features and the other containing
non-essential features. According to him the latter can be
amended in any way the Parliament likes, but so far as the
former provisions are concerned, though they may be D
amended, they cannot be amended so as to damage or
destroy the core of the essential features. Two difficulties
arise, who is to decide what are essential provisions and
non-essential provisions? According to Mr. Palkhivala it
is the court which should do it. If that is correct, what
- -,.. stable standard will guide the court in deciding which E
"'Provision is essential and which is no essential? Every
provision, in one sense, is an essential provision, because
if a law is made by the Parliament or the State Legislatures
contravening even the most insignificant provision of the
constitution, that law will be void. From that point of view F
the courts acting under the constitution will have to look
upon its provisions with an equal eye. Secondly, if an
essential provision is amended and a new provision is
inserted which, in the opinion of the constituent body,
should be presumed to be more esseniial than the one
repealed, what is the yardstick the court is expected .to G
employ? It will only mean that whatever necessity the
constituent body may feel in introducing a change in the
constitution, whatever change of policy that body may like
to introduce in the constitution, the same is liable to be
struck down if the court is not satisfied either about the H
556 SUPREME rouRT REPORTS (1993) 1 S.C.R.
A necessity or the policy. Clearly this is not a function of the
courts. The difficulty assumes greater proportion when an
amendment is challenged on the ground that the core of
an essential feature is either damaged or destroyed. What
is the standard? Who will decide where the core lies and
when it is reached? One can understand the argument that
B particular provisions in the constitution embodying some
essential features are not amendable at all. But the dif-
ficulty arises when it is conceded that the provision is
liable to be amended, but no so as to touch its 'core'. Apart
from the difficulty in determining where the 'core of an
c essential features' lies, it does not appear to be sufficiently
realised what fantastic results may follow in working the
Constitution. Suppose an amendment of a provision is
made this year. The mere fact that an amendment is made
will not give any body the right to come to this Court to
have the amendment nullified on the ground that it affects
D
the core of an essential feature. It is only when a law is
made under the amended provision and that law affects
some individual's right, that he may come to this Court.
At that time he will first show that the amendment is bad
because it affects the core of an essential feature and if
E he succeeds there, he will automatically succeed and the
law made by the Legislature in the confidence that it is
protected by the amended constitution will be rendered
void."

Khanna, J. in ilie said judgment at page 720 stated as· under :
F
"So far as the question is concerned as to whether the
right to property can be said to pertain to basic structure
or framework of the Constitution, the answer, in my
e>pinion, should plainly be in the negative."
G
Mathew, J. in the said judgment at page 827-828 observed :

"But the question will still remain, even when the core
or the essence of a Fundamental Right is found, whether
the Amending Body has the power to amend it in such a
H way as to destroy or damage the core. I have already said
"
RAGHUNATII v. U.0.1. [MOHAN, J.) 557
that considerations of justice, of the common good, or "the A
general welfare in a democratic society" might require
abridging or taking away of the Fundamental Rights.

I have tried, like Jacob of the Old Testament to wrestle
all the night with the ange~ namely, the theory of implied
limitation upon the power of amendment. I have yet to
B
learn from what source this limitation arises. Is it because
the people who were supposed to have framed the Con-
stitution intended it and embodied the intention in an
unalterable framework? If this is so, it would raise the
fundamental issue whether that intention should govern c
the succeeding generations for all time. If you subscribe
to the theory of Jefferson, to which I have already referred
and which was fully adopted by Dr. Ambedkar, the prin-
cipal architect of our Constitution - and that is the only
same theory - I think there is no foundation for the theory
D
of implied limitations. Were it otherwise, in actual reality
it would come to this : The representatives of some people
- the framers of our Constitution - could bind the whole
people for all time and prevent them from changing the
constitutional structure through their representatives.
And, what is this sacredness about the basic structure of E
the Constitution? Take the republican form of Govern-
ment, the supposed cornerstone of the whole structure.
Has mankind, after its wandering through history, made
a final and unalterable verdict that it is the best form of
government? Does not history show that mankind has F
changed its opinion from generation to generation as to
the best form of Government? Have not great
philosophers and thinkers throughout the ages expressed
different views 011 the subject? Did not Plato prefer the
rule by the Guardians? And was the sapient Aristotle
misled when he showed his proclivity for a mixed form of G
government? If there was no consensus yesterday, why
expect one tommorow? 11

Commenting on ihis case and Go/aknath's decision, Subba Rao, Ex.
CJ.I. in "The two judgments : Go/aknath and Kesavananda Bharati" (supra) H
558 SUPREME COURT REPORTS (1993] 1 S.C.R.
A says at page 18:

"The result is that the Supreme Court by majority declared
that the Parliament under the Indian Constitution is not
supreme, in that it cannot change the basic structure of
the Constitution. It also declared by majority that under
B
certain circumstances, the amendment of the fundamental
rights other than the right to property would affect the
basic structure and therefore would be void. The question
whether the amendment of the fundamental right to property
would under some circumstances affect the basic structul'Y!
c of the Constitution is 11ot ftY!e from doubt; the answer
depends upon the view the Supreme Court takes hereafter
of the impact of the opinion of Mathew, Beg, Dwivedi and
Chandrachud, JJ. - the fundamental rights are the basic
features of the Constitution-on the opinion of the six
D judges, who held that the core of the fundamental rights
is part of the basic structure of the Constitution. One
possible view is that together they form a clear majority
on the content of the basic structure; another possible view
is that their opinion should be read along with their finding
E that the entire Constitution, except perhaps the bare
machine of Government, could be repealed by amend-
ment."

If this be the law, the question would be whether Articles 291, 362,
F 366(22) could ever be intended to form a basic structure. The answer
should be in the negative. They have no overall applicability permeating
through the entire Constitution that the absence of these provisions will
change the nature and character of the Constitution. While examining the
question whether these Articles constitute the basic structure, one must
G have regard to Article 363 of the Constitution. They are made enforceable
in a Court of law. If reaUy they are to form basic structure, would not a
corresponding right as occurring under Article 32(4) have been provided?

In Indira Nehru Gandlli's case (supra), the following observations are
H found in para 663 :
RAGHUNATII v. U.0.1. (MOHAN, J.] 559
Preamble "The preamble, generally, uses words of "passion and A
vis-a-vis power" in order to move the hearts of men and to stir them
object of into action. Its own meaning and implication being in doubt,
amendment the preamble cannot affect or throw light on the meaning
of the enacting words of the Constitution. Therefore, though
our Preamble was voted upon as is a part of the Constitu- B
lion, it is really "a preiminary statement of the reasons"
which made the passing of the Constitution necessary and
desirable. As ,observed by Gajendragadkar, J. in In re
Berubari Union v. Exchange of Enclaves, what Willoughby
has said about the preamble to the American Constitution,
namely, that it has never been regarded as the source of any C
substantive power, is equally true about the prohibitions and
limitations. The preamble of our Constitution cannot there-
fore be regarded as a source of any prohibitions or limita-
tions."
D
Therefore, regard must be had to the scope of the preamble which
states:

"The concept of Rulership, with privy purses and spe-
cial privileges un-related to any current functions and social
purposes, is incompatible with an egalitarian social order.
E
Government have therefore decided to terminate the privy
purses and privileges of the Rulers of former Indian
States. It is necessary' for the purpose, apart from amend-
ing the relevant provisions of the Constitution, to insert a
new article therein so as to terminate expressly the recog- F
nition already granted to such rulers and to abolish privy
purses and extinguish all rights liabilities and obligations
in respect of privy purses."

If the 26th amendment aims to establish an egalitarian society which is G
in consonance with the glorious preamble, how could this provision be called
a basic structure? No doubt, in Madhav Rao's case (supra), it was held that
these provisions are an integral part of the Constitution of this country. Apart
from the fact that all these reasons were addressed against the power of the
President under Article 366(22), this statement cannot tantamount to basic H
560 1SUPREME COURT REPORTS (1993) 1 S.C.R.
A structure.Nor would it mean the same as the basic structure.

To determine whether these provisions constitute basic structure or ,i(--
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
B changed...
Change of The repudiation of the guarantees might result in the
Tune&Law. nullification of a just quid pro quo. But, if it is the will pf
the people to establish an egalitarian society that will be in
harmony with the changing tunes of times. It cannot be
c denied that law cannot remain static for all times to come.
The extract of Mathew, J. in Kesavananda's case highlights
this aspect as under :

'But the question will still remain, even when the core
D or the essence of a Fundamental Right is found, whether
the Amending Body has the power to amend it in such a
way as to destroy or damage the core. I have already said
that considerations of justice, of the common good, or "the
general welfare in a democratic society" might require
E abridiging or taking away of the Fundamental Rights."

Weems v. United States, 54 Law Edition 801 quoted in Francis Coralie
Mullin v.Administrator, Union Territory of Delhi & Ors., (1981) 1SCC608
at page 617 succinctly states the law on this aspect as under :

F "Time works changes, brings into existence new condi-
tions a11d purposes. Therefore, a principle, to be vital, must
be capable of wider application than mischief which gave it
birth. This is peculiarly true of Constimtions. They are not
ephemeral enactments designed to meet passing occasions.
They are, to use the words of Chief Justice Marshal~
G "designed to approach immortality as nearly as human
instimtions can approach it". The [umre is their care, and
provisions for events of good and bad tendencies of which
no prophecy can be made. In the application of a Constim-
tion, therefore, our contemplation cannot be only of what
H has been, but of what may be. Under any other rule a
RAGHUNATII v. U.0.1. (MOHAN, J.] 561
Constitution would indeed be as easy of application as it A
would be deficient in efficacy and power. Its general
principles would have little value, and be converted by
precedent into impotent and lifeless formulas. Rights
declared in the words might be lost in reality. And this
has been recognised. The meaning and vitality of the
Constitution have developed against narrow and restric-
B
tive construction." (emphasis supplied)

Robert S. Peck in "The Bill of Rights & the Politics of Intetpretation"
states at page 316-317 as under :
c
"The Constitution, then, is not a beginning nor an end,
but part of a timeless process. Any constitution "intended
to endure for ages to come" (Mcculloch v. Maryland, 17
U.S. (4 Wheat) 316, 415(1819) cannot be a closed system
or temporally bound. The Constitution is more properly D
seen as part of a stream of history. That stream is not
always unbroken and has, frequently, taken radical turns
That it is path has been winding is not surprising, since
history is not a steady and predictable progression follow-
ing drlier events. Still, constitutional rights must be
viewed as travelling down a single historic stream. Today's E
conclusions, to remain principled and persuasive, need to
relate back to earlier origins. When cases come before the
Courts, purposes and concerns of timeless character re-
quire translation into practical rules that apply to their
most modern manifestations. In thi~ role, courts perform F
a mediating function, harmonizing different strands into a
coherent order. But the courts do not eliercisc an exclusive
authority in giving coherence to constitutional law. Politi-
cal leaders and political institutions have played this role
as well, advancing both the law and the mechanisms avail-
able to promote constitutional liberty. "Great constitution- G
al provisions must be administered with caution." Justice
Oliver Wendell Holmes remained us. "Some play must be
allowed for the joints of the machine, and it must be
remembered that legislatures are ultimate guardians of the
liberties and welfare of the people in quite as great a H
562 SUPREME COURT REPORTS (1993) 1 S.C.R.
A degree as the Courts. (Missouri, Kansas & Texas Rly. Co.
v. May, 194 U.S. 267, 270 (1904)).

The C.ourts arc insulated from the political winds that
buffer, moiivate and sometimes disable a legislature. This
independence from the larger political world is critical to ·
B the successf~I discharge of the tasks we assign the
judiciary. Nevertheless, the courts operate in a political
world of their own. In this variety of politics, courts must
harmonize past with present, conflict with resolution,
·change with continuity. And they must contend with a
c!
variety of interest groups that influence the process by
their actions and by the appeal of their argumenis.•

In the words of the famous poet James Russel Lowell :

·D New occasions teach new duties: Time
makes ancient good uncouth:
They must upward still, and onward, who
would keep abreast of Truth."

E
No doubt, unity and integrity of India would constitute the basic
structure as laid down in Kesavananda's case (supra) but it is too far
fetched a 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
F 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 unaccep-
table.

G Next as to the violation of Article 14, it is true as laid down in
Bhimsinghji's case (supra) that if a particular provision of a constitution
violates Article 14, it would affect the basic structure of the Constitution.
This case dealt with the validity of Section 27(1) of the Urban Land
(Ceiling and Regulation) Act, 1976. The relevant portion of the judgment
H in Bhimsinghji's case (supra) can now be extracted :
I" -

RAGHUNA1H v. U.0.1. (MOHAN, J.) 563
Per Tulzapurkar, J. A
Violation of 'Further, the restriction under Section 27(1) in the
Alt. 14 absence of any guidelines governing the exercise of the
power on the competent authority in the matter of granting
or refusing to grant the perniission is highly arbitrary,
productive of discriminatory results and, therefore, violates B
the equality clause of Article 14. Which of the tlu;ee objec-
tives mentioned in the preamble should guide the exercise
of power by the competent authority in. any given case is
not clear and in any case no standard has been laid down
for achieving the objectives of preventing concentration, C
speculation, and profiteering in urban land or urban proper-
ty. Because of these reasons the provisions for appeal and
revision under Sections 33 and 34 against the order passed
by the competent authority under Section 27, would also
not -be of much avail to preventing arbitrariness in the D
matter of granting or refusing to grant the permission.
Section 27 is thus ultra vins and unconstitutional.'

Per Chandrachud, CJ. and Bhagwati, J. (Krishna Iyer, J.,
concurring)
E
"Sub-section (1) of Section 27 of the Act is invalid insofar
as it imposes a restriction on transfer of any urban or
urbanisable land with a building or a portion onlyof such
building, which is within the ceiling area. Such property
will, therefore, be transferable "without the constrains men-
F
tioned in sub-section (1) of the Act;" (paras 5,8, &10)

Per Krishna Iyer, J. (concurring)

"I agree with the learned Chief Justice both regarding
the constitutionality of the legislation and regarding par- G
tial invalidation of Section 27(1)."

Per Sen, J.

"Sub-Sections (1), (2) and (3) of Section 23 and the
opening words "subject to the provisions of sub-sections H
564 SUPREME COURT REPORTS (1993] 1 S.C.R.
A (1), (2) and (3) in Section 23(4) are ultra vires the Par-
liament and are not protected by Articles 31-B and 31-C
of the Constitution and further, Section 27(1) is invalid
insofar as it imposes a restriction on transfer of urban
property for a period of ten years from the commencement
of the Ac4 in relation to vacant land or building thereon,
B within the ceiling limits."

Krishna Iyer, J. stated in the said judgment at page 186
as under:

c 'The question of basic structure being breached cannot
arise when we examine the vires of an ordinary legiolation
as distinguished from a constitutional amendment.
Kesavananda Bharati, 1973 Supp. SCR cannot be the last
refuge of the Propreitariate when benigh legislation takes
D away their 'excess' for societal weal. Nor, indeed, can every
breach of equality spell disaster as a lethal violation of the
basic otructure. Perioheral inequality is inevitable when
large-scale equalisation processes are put into action. If
all the judges of the Supreme Court in solemn session sit
and deliberate for half a year to produce a legislation for
E reducing glaring economic inequality their genius will let
them down if the essay is to avoid even peripheral ine-
qualities. Every large cause claims some martyr, as
sociologists will know. Therefore, what is a betrayal of the
basic feature is not a mere violation of Article 14 but' a
F shocking, unconscicnable or unscrupulous travesty of the
quintessence ol equal j1L•tice. If a legislation does go that
far it shakes the democratic foundation and must suffer
the death penalty. But to permit the Bharati (supra) ghost
to haunt the corridors of the court brandishing fatal writs
for every feature of inequality is judicial paralysation of
G parliamentary function. Nor can the constitutional fascina-
tion for the ·basic structure doctrine be made a Trojan
horse to penetrate the entire legislative camp fighting for
a new social order and to overpower the battle for aboli-
tion of basic poverty by the 'basic structure' missile. Which
H is more basic? Eradication of die-hard, deadly and per-
RAGHUNATII v. U.0.1. [MOHAN, J.] 565
vasive penury degrading all human rights or upholding of A
the legal luxury of perfect symmetry and absolute equality
attractively presented to preserve the status quo ante ? To
use the Comtitution to defeat the Constitution cannot find
favour with the judiciary ! I have no doubt that the strategy
of using the missile of 'equality' to preserve die-bard,
dreadful societal inequality is a stratagem which must be
B
given short shrift by this Court. The imperatives of equality
and development are impatient for implementation and
judicial scapegoats must never be offered so that those
responsible for stalling economic transformation with a
social justice slant may be identified and exposed of. Part c
IV is a basic goal of the nation and now that the Court
upholds the urban ceiling law, a social audit of the
Executive's implementation a year or two later will bring
to light the gaping gap between verbal velour of the statute
book and the executive slumber of law-in-action. The
D
Court is not the anti-hero in the tragedy of land reform,
urban and agrarian."

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. E

The next aspect of the matter is can the Court go into the morality
in witlldrawing these assurances and guarantees.

The following extract from 'Law and Morality' by Louis Blom-Cooper F
Gavin Drewry at page 2 is very useful :

"The relationship between law and morals is in effect
quadripartite, but it is only the fourth part that engages
our current interest. The first part is an historical and
casual question. Has the law been influenced by moral G
principles? No one doubts the answer is affirmative; con-
versely law has ffifluenced moral principle. The Suicide

r Act, 1961 no doubt accurately reflected the long-standing
moral view that to take one's own life was not a crime
against the law, a view which had not always been shared H
566 SUPR~Mil COURT REPORTS (1993) 1 S.C.R.
A by the judiciary (originally) for reasons having t? do as
much with property as with theological morality). The
statutory abolition of the crime of suicide in its turn
buttressed and affirmed the moral attitude.

The second part questions whether law necessarily
B
refers to morality at all; do morals and law overlap in
practice, simply because both share the common
vocabulary of rights and duties? It is here that the natural
lawyers and legal positivists have engaged most fiercely in
controversy. The antagonists have found temporary refuge
c in the sterile argumeni about whether law is open to moral
criticism ..

Can a rule of law, 'properly' derived (in constitutional
terms) to be held to conflict with some moral principle?
Those who witnessed Parliament, through the vehicle of
D
the War Damage Act, 1965 reversing retrospectively the
H_ouse of Lords' decision in Bunnah Oil Co. Ltd. v. Lord
Advocate, (1965) AC 75 and thus depriving a large cor-
poration of its fruits of litigation, would acknowledge
readily the dissociation of law and political, if not social,
E morality. In any event, does it matter that the law is
immorally enacted, if we are all bound by it? Its enfor-
ceability (if not its actual enforcement) is unlikely to be
affected by such theoretical objections.'---..Perhaps political
morality can be defined only in terms of the franchise, and
F the efficacy of representative government - though again
the argument rests on a philosophical and psychological,
rather than on an empirical plane."

Then again, dealing with constraints on Constitutional interpretation.
Kent Greenawalt in 'Conflicts of Law and Morality" 1987 Edition states at
G page as follows :

Impugned "Like ordinary legislation, constitutional provmons
amendment protecting rights reflect the moral judgments of those who
whether adopted theill, in this case complex judgments that certain
H mOl'tll. activities sbliuld be put beyond the range of control by the
•
RAGHUNAIB v. U.0.1. [MOHAN, J.J 567
political branches of the government. In constitutions, as A
in statutes, language may embody a compromise of com-
peting moral claims, though nothing in out federal Con-
stitution resembles the relatively precise accommodation
of the criminal law rules governing use of force in self-
defence. The fact that the Constitution itself represents
B
moral evaluations does not, of course, establish that moral
evaluation is also the task of those who must decide if
statutes and their applications fall a foul of constitutional
restraints.

Widespread agreement exists on the appropriateness c
of some other techniques of interpretation. The point if
clearest for actions that the language of the Constitution,
the intent of the Framers, and the decisions of earlier
courts place sqaurely within the area of constitutional
protection. For these actions,. a modem court will rarely D
need to engage in any debatable moral evaluation. Usually
it will apply the plain law, perhaps after determining that
no overwhelming argument has been made contrary to the
indications of these powerful sources. Even for harder
cases, judicial interpretation is not simple moral evalua-
tion; the implications of the textual language, the Framers' E
intent, and the precedents count for something if they
point in one direction or another."

To the same effect, Michael J. Perry in "Morality Politics and law''
1988 Edn. states at page 129 as under : F

"According to the view of democracy that underlies
originalism, it is illegitimate for the judiciary to go beyond
the enforcement of p0licy choices to the· making of policy
choices-at least, it is illegitimate Uitless the. judiciary is G
authorised to do so by the legislative and executive branches.

r And it is illegitimate in extremis for the undemocratic
judiciary to oppose itself, in constitutional cases, to the
democratic branches and agencies of government on the
basis of beliefs 1ne1(Cr conktitutionalised by the ratifiers." H
568 SUPREMj3 COURT REPORTS [1993) 1 S.C.R.
A Therefore, this Court cannot concern itself with the moral aspect of
the impugned amendment. The impugned amendment is the will of the A( -
people expressed through Parliament.

In view of the foregoing discussion, these petitions .ire liable to be
dismissed. Acrordingly, these petitions stand dismissed.
B
V.P.R. Petitions dismissed.