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Ending Rulership and Its Rights
by Dr. Mohammed Imam *
Cite as : (1971) 1 SCC (Jour) 51
Sequel to December 15, 1970, decision of the Supreme Court (per majority) in the Madhavrao Jivajirao Scindia case,1 holding the Order of the President of September 6, 1970, withdrawing the recognition of all the Rulers of the former Indian States as illegal and on that account inoperative, the question of ending the constitutional concept of Rulership and its attendant rights and privileges is occupying the position of priority in the list of Governmental programmes. The Government has in Parliament declared its intention to do it by constitutional means and for this an amendment of the Constitution is predominantly contemplated.
The decision of the Court has been subjected to vehement criticism and once again it is taken to substantiate the view that the Judges of the Court tend to be conservative and thus create a gulf between the law and compulsions of social realities and needs. The present author is unable to subscribe to this view for various reasons considered in an another work. A few of these reasons and the legal implications of the constitutional amendment contemplated by him to end the concept of Rulership and its attendant rights and privileges are considered here.
The object of the President's Order recognising all the Rulers was to terminate the privy purses and personal rights and privileges of the Rulers for the reason that (1) the people of the country having become conscious of their social and economic rights would not tolerate any longer the concept of Rulership or the privy purse or any of the privileges incorporated in the covenants and merger agreements and (2) the concept of Rulership, privy purse and privileges guaranteed to the Rulers without any relatable function and responsibility have become incompatible with democracy, equality and social justice in the context of India of today.2 Whereas the object contemplated by the provisions contained in Articles 291 and 362 was to discharge the obligations under the agreements as to payments of privy purses, continuance of the personal rights and privileges and continuance of the institution of Rulership for these purposes undertaken in the nature of consideration or as quid pro quo for the surrender by the Rulers of all their ruling power and for the dissolution of their States as separate units. These provisions were enacted with a view to do justice to the Rulers and failure to discharge these obligations was regarded by the Constitution-makers as a breach of faith by the nation.3 The Court, however, held (per majority) that Article 291 confers right to privy purses on the Rulers and a corresponding obligation to pay the amount of privy purses on the Union of India enforceable in the Courts: that Article 291 not being related to covenants and agreements the jurisdictions of the court in respect thereof is not barred by Article 363: that Article 362 implies acceptance, recognition and affirmation of the binding force of the guarantees and assurances under the covenants and agreements of personal rights, privileges and dignities but it being related to covenants and merger agreements the jurisdiction of the courts in respect thereof is barred to the extent provided in Article 363: that where there is express legislation enacted to give effect to certain personal rights and privileges, they can be enforced as rights relying upon the mandate of the statutes and not of the covenants; that the Constitution recognises the institution of Rulership and the power of the President under Article 366(22) must be exercised to maintain it and not to destroy it; that where a Ruler is de-recognised the President is duty-bound to recognise his successor, if available, as the Ruler; that Article 366(22) not being related to covenants and agreements the jurisdiction of the Courts in respect thereof is not barred by Article 362 and that the Order being without authority of law, violated Articles 19(1)(f), 21 and 31(1) of the Constitution.
The Constitution-makers' intention was to honour commitments and discharge obligations in consideration of the acts done by the Rulers; whereas the object of the Presidential Order was to cease to honour those commitments for reasons of contemporary significance having no relation to the acts done by the Rulers. In other words the basis of the constitutional provision was pacta sunt servanda and the basis of the Presidential Order was rebus sic stantibus. The executive being subject to the Constitution and the guarantees given in the agreements having been incorporated in the Constitution rebus sic stantibus could not be established by an executive action.4 The decision of the Court in effect prevented realisation of the objectives contemplated by the Presidential Order by means of an executive action. It, however, gave effect to the intention of the Constitution-makers and saved the Nation from committing a breach of faith. But, will it be possible for the Court to do it if these objectives were sought to be realised by legislative action or by Constitutional amendments? Are there any limitations on these two actions now available to the Government?
Legislative action may be contemplated for withdrawing personal rights, privileges and dignities given effect to in various statutes as Article 362 has been held as relating to covenants, etc., but the doubt still remains about the validity of such a measure so long as Article 362 exists, as the Court has yet to decide whether the denial of such known, ascertained and once implemented personal rights, etc., would amount to dispute within the meaning of the second limb of Article 363. The other measure could be to delete Articles 291, 362, 366(22) and the second part of Article 363. The competence of Parliament to abolish by constitutional amendment the rights and privileges accorded to the Rulers was neither debated before nor considered by the Court in this case. If Articles 291, 362 and 366(22) are deleted, the second limb of Article 363 would become redundant and may as well be deleted. The constitutional amendment being 'law' within the meaning of Article 13 of the Constitution as held by the Supreme Court (per majority) in Golaknath v. State of Punjab,5 it may be impugned, so long as the Golaknath case is not overruled, if it violates any of the fundamental rights guaranteed by the Constitution.
Rulership is held by the Court as an institution which the President in exercise of his power under Article 366(22) cannot abolish so long as the Ruler or his successor is available. Thus it is a hereditary interest. The Court in Commission H. R. E. v. Lakshmindra,6 held a hereditary interest as 'property', for in its view the 'well recognised types of interests which have the insignia or characteristics of proprietary right' are 'property' within Article 19(1)(f).7 Thus deprivation of this right would be upheld only if the requirements of Article 19(5) are satisfied.
The privy purses, as considered above, having been held by the Court as property, their deprivation may have to be justified under Articles 19(5) and 31(2). The decision of the Court in State of M. P. v. Ranojirao Shinde8 is directly attracted by this fact situation. For attracting Article 31(2), these conditions must be fulfilled: that it should amount to 'acquisition'; that it should be for a public purpose, that there should be paid compensation for it. In the Ranojirao case the Supreme Court regarded the view of the M. P. High Court, that the law abolishing cash grants cannot be considered as having transferred the rights of the grantees as provided in Article 31(2-A), as debatable. But its observations that the discontinuance of the payment of cash grants may be viewed as a statutory transfer of rights of the grantees to the State9 and that the abrogation of the liability of the Government would amount to appropriating by the Government the property of others which is in its hands,10 indicate the possibility of the Court holding such a measure as 'acquisition' within Article 31(2). The deprivation of privy purses may be held for a public purpose (even if Article 31(2) is harmoniously construed with Article 19(1)(f)), for its objects are much more than, and independent of, augmenting the resources of the State. The Court may hold that though money and choses-in-action cannot be acquired, because of the social and political reasons of exceptional character, the privy purses can be acquired under Article 31(2).11 By the abolition of Rulership, it is not the right to privy purse alone that is abolished but also many other rights and privileges that go with the concept of Rulership and the continuance of which is regarded incompatible to democracy, equality and social justice in the context of modern India. So long as the Court is not persuaded to hold that the compensation payable need not be equivalent and that when Article 31(2) is read with Article 19(5), the compensation which is reasonable in the circumstances of the case, would satisfy the requirement of Article 31(2), the compensation payable in view of the Bank Nationalisation case may have to be equivalent of the property deprived of and for this the Legislature may adopt capitalisation method, say 12 to 24 years of privy purse amount payable in suitable instalments.
If Article 31(2) is held not applicable to the case because either it is not 'acquisition' or it is not for a 'public purpose', the requirements of Article 19(5) may have to be fulfilled. The deprivation of the privy purses would certainly be 'in the interest of the general public' for it is contemplated as a measure to realise the purposes of Article 38 of the directive principles. But will this deprivation amount to 'reasonable restriction'? The view of the Court in the Ranojirao case that the Act which empowers the State to appropriate some one else's property for itself solely with a view to augment the resources of the State, cannot be considered as a reasonable restriction in the interest of the general public12 may have to be reconsidered keeping in view the fact that the object of the abolition of privy purses is not for augmenting the resources of the State alone. The measure being in the general interest the court may do well, if it proceeds to determine the reasonableness of the restriction imposed by taking into account the manner in which the deprivation takes place, and, it is submitted, this requirement may be satisfied if the amount of compensation paid is reasonable one. To regard 'total deprivation' as unreasonable restriction would be to say that 'restriction' can only be short of 'deprivation'—a proposition which the Court rejected earlier on many occasions.
If the 'deprivation' under Article 31(1), read with Article 19(1)(f) or 'acquisition' under Article 31(2), read with Article 19(1)(f) of the privy purses is not permissible, then the deprivation of Rulership right may be justified under Article 31(1), read with Article 19(1)(f), and since with it the right to privy purses and other rights and privileges go, for the restriction to appear reasonable the Legislature may provide for payment of mutually agreed compensation or reasonable compensation by basing the valuation on the amount of privy purses, and taking into consideration various rights and privileges of which the Rulers would be deprived.
Invalidation of the constitutional amendment which provides for reasonable or mutually agreed compensation for the abolition of privy purses (and other rights and privileges), by strictly applying the decision of the Court in the Ranojirao case (which needs to be clarified by the Court in more than one way) and by ignoring the exceptional fact situations of social, economic and political compulsions of modern India involved in this case, may be difficult to be justified. It would accord permanency to the institution of Rulership, make the payment of privy purses a perpetual liability of the Nation and allow the continuance of the princely privileges, dignities and titles which are anachronistic to the democratic and social order of the time.
- (1971) 1 SCC 85.
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- Vide Government's affidavit filed in this case. The concept of Rulership with privy purses and special privileges is unrelated to any current functions and social purposes and is incompatible with an egalitarian social order: 'Statement of Objects and Reasons of The Constitution (Twenty Fourth Amendment) Bill, 1970. Keeping in view the political developments preceding this action, the bona fides of the Government is doubted and the real motive for this action is attributed to the increasing participation by the rulers into the political process of the country and although prior to the 1967 elections it was the Congress Party which used Rulers for its political gains, the Governmental attack on the Princes developed directly out of the reverses suffered by the Congress Party in the 1967 Elections due to the Princes joining and using their influence for other political parties. See William, L. Richter: 'Princes in Indian Politics', 6 Economic and Political Weekly, 535 at 538 and 540 (1971).
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- July, 1949, Note of the Ministry of States to the Drafting Committee of the Constitution, B. Shiva Rao, 4 Framing of India's Constitution, 553-564 (1968): October 12, 1949 speech of Sardar Patel in the Constituent Assembly : 10 C. A. D., 165-168 and Ministry of States White Paper on Indian States, 120-126 (1950).
The cost of the integrating the Indian States into the Union of India viz. the total amount of the privy purse, etc., would seem insignificant if weighed against its gains. See for the comparison of the cost and the gains of the integration: V.P. Menon, The Story of the Integration of the Indian States, 461-462 (1961).
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- Hegde, J., for instance, observed that the Court was not the forum to go into the objects contemplated by the order and the political passions surrounding the issues because the primary function of the Court is to interpret the relevant provisions of the Constitution and to see whether any fundamental rights of the petitioners is infringed and that neither the Legislature nor the executive can have a policy which runs counter to the policy laid down by the Constitution, (1971) 1 SCC 85 at 171.
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- AIR 1967 SC 1643: (1967) 2 SCR 757: (1968) 1 SCJ 355. See also M. Imam, The Indian Supreme Court and The Constitution, 335-336 (1968).
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- AIR 1954 SC 282 at 288: 1954 SCR 1005: 1954 SCJ 335.
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- Power of Eminent Domain extend to every species of property, and every character of right, title or interests therein, and to every sort of interest a citizen may possess: Weaver, Constitutional Law, 548 (1946).
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- (1968) 3 SCR 489: (1968) 2 SCJ 760.
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- Ibid at 493.
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- Ibid at 496.
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- Even in U.S.A. exception to this doctrine is recognised in certain cases: See Nichols, 1 Eminent Domain, 100 (1950) and Basu, 2 Commentary on the Constitution of India, 211-212 (1965).
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- Citing in support the view of Aiyar, J. in Bombay Dyeing and Mfg. Co. v. State of Bombay, (1958) SCR 1122: AIR 1958 SC 328: (1658) SCJ 620.
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