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The Constitution of India is the supreme law of the country, conferring power to other laws that govern and regulate the legal framework. But through the course of time, some laws may require changes to be made while some may have to be completely eliminated. This was the basic idea behind the Constituent Assembly giving the legislature the power to amend existing laws. However, the amending powers are subject to some limitations and a certain procedure must be followed by the Parliament, i.e. “procedure established by law”.
This procedure is mentioned in Article 368 of the Indian Constitution. Since the Constitution came into force, the Parliament’s amending powers under Article 368 has been subject to many challenges before the Supreme Court. Some of the most notable cases in this regard are Keshvananda Bharti case, Golaknath case and the Minerva Mills case. Raghunathrao Ganpatrao v. Union of India is another such case in which the power of the government to amend the basic structure was challenged by Shri Raghunathrao Raja. The former ruler of the Indian state Kurundwad claimed that the Twenty Sixth Constitution Amendment Act was beyond the amending powers of the parliament and infringed upon the basic structure of the Constitution.
When British India was granted independence in 1947, there were a large number of Princely States. These states had local Maharajas ruling them and they constituted a very significant portion of the subcontinent’s area and population. After independence, they had the freedom to choose a future course of action for their states. Aside from consolidating into one of the newly formed dominions of India and Pakistan, the states could choose to remain sovereign. Following extensive efforts by VP Menon and Sardar Vallabhbhai Patel, the major fraction of Princely States joined India by signing instruments of accession.
By means of the instruments, the rulers needed to surrender defence, communication and foreign affairs to India. Different Princely States merged to form new ones that were controlled by the Indian government. The maharajas of erstwhile Princely States were provided tax-free sums of money by the Government of India. These sums were called ‘privy purses’ and the amount to be paid depended on various factors like the revenue being generated by the State. The amount was to be paid from the Consolidated Fund of India. After the death of the ruler, the family successor would be entitled to payment of the sum. Since most of the rulers were initially averse to losing their sovereignty, promise of privy purses served as a huge driving force leading to the settlement between them and the Government of India.
Over the course of time, attempts were made by several leaders to reduce or abolish the privy purses. These attempts were met with objection by others. Sardar Vallabhbhai Patel was one such leader who threatened to resign in case the government reneges on its promise. In 1970, a motion was brought in the Parliament for the abolition of privy purses. The same was passed in the Lok Sabha, but failed by one required vote in the Rajya Sabha. Following this defeat, an order was passed by the then President V.V. Giri scraping rulers’ right to privy purses. This order was in consonance with the president’s powers under article 366(22) of the Constitution. Subsequently, a petition was filed before the Supreme Court and the order was struck down in the famous case H. H. Maharajadhiraja Madhav Rao v. Union of India. In 1971, the Indira Gandhi led government brought the 26th Amendment Act, which stripped the rulers of any special recognition and abolished the payment of privy purses. The validity of the same was questioned in the Raghunathrao Case and it was finally held by the Hon’ble Supreme Court that the 26th Amendment Act was valid in its entirety.
The rulers of former princely states were guaranteed privy purses by adopting Article 291 of the Indian Constitution. Article 362 recognized the personal rights and privileges of the rulers. Further, Article 366(22) defined which persons could be considered rulers and would be entitled to privy purses. The 26th Amendment Act passed in 1971 repealed Articles 291 and 362 from the Constitution and clause 22 of Article 366 was substituted with Article 363-A. By virtue of Article 363-A, the special recognition and privileges enjoyed by the rulers were withdrawn. Additionally, the petitioner also challenged the constituent powers of the Parliament to amend the said provisions. It was claimed on the petitioners’ behalf that the special status of rulers along with the privy purses formed the basic structure of the Constitution. Hence, the 26th Amendment Act was ultra vires and therefore, unconstitutional. Moreover, it was contested that the Amendment Act was violative of Articles 14, 19(1)(f) and (g), 21, 31(1) and (2) of the Indian Constitution.
In so much as the case was concerned with the distinctive issue of privy purses and rulers, it also involved the questions as to the subjects constituting the ‘basic structure’ and what is the extent of legislature’s amending powers. The petitioners pointed out that accession of Princely States was a very crucial factor in shaping the post-independence Indian scenario and if it had not been for the rulers’ approval to merge, formation of the Union of India would be out of question. This, it was argued, also made the agreement of privy purses an ‘integral’ part of the Constitution. Further, it was contended that the losses that were suffered by agreeing to merge were far greater than the compensation that was being provided as consideration to the maharajas. The counsel for the petitioner asserted that the impugned Amendment stood as an ‘epitome of immorality’.
The respondents opposed claims of immorality by contending that it was a basic principle fo jurisprudence, that ‘a law could not be interpreted on the basis of moral principles’. However, their main contention was that special rights and privileges were incompatible with a republican and sovereign government, which was also the underlying basis behind the Amendment. Apart from highlighting the difference between ‘integral part of Constitution’ and the ‘basic structure’, it was also asserted that to say that without the rulers’ assent, integration of India wouldn’t be impossible is highly improper. This is due to the fact that there was a popular gust of nationality swarming among the people after independence which played a huge role in the merger agreements.
In its decision, the Supreme Court upheld the validity of the 26th Amendment Act in its entirety. It was also held that the said amendment did not violate Articles 14, 19(1)(f) and (g), 21, 31(1) and (2) of the Constitution. It was stated that immorality should be viewed separately from legislation as they greatly differ from each other. Furthermore, the amendment causes no change to the basic structure of the Constitution. The issue of privy purses that began in 1970s was finally decided in 1993 in the Raghunathrao case. However, it still remains the subject of debates and dialogue among many, even today.
Author: Tejas Kandalgaonkar from Rajiv Gandhi National University of Law.
Editor: Astha Garg, Junior Editor, Lexlife India