S.RATNAVEL PANDIAN - (1.) THESE two writ petitions call in question the constitutional validity of the Constitution (Twenty-sixth Amendment) Act, 1971 inter alia, on the ground that it violates the basic structure and essential features of the Constitution of India and is, therefore, outside the scope and ambit of constituent powers of the Parliament to amend the Constitution as provided under Article 368 of the Constitution. In addition, certain directions or suitable orders are sought for declaring that the petitioners continue to be the Rulers or the 'Successor Rulers', as the case may be and directing the respondent-Union of India to continue to recognise their personal rights, amenities and privileges as Rulers of their erstwhile States and also continue to pay privy purse to them in addition to their arrears of amounts. For facilitating a proper understanding of the controversy that has led to the filing of these two writ petitions and the Interlocutory Application Nos. 1 to 3 of 1992 in Writ Petition No. 351 of 1972, a synoptical resume of the case as adumbrated in Writ Petition No. 351 of 1972 with the historical background may be stated.
(2.) THE petitioner, Shri Raghunathrao Raja was the co-Ruler of Indian State of Kurundwad Jr. which was prior to 15/08/1947 a sovereign State in treaty relationship with, and under the suzerainty of the British 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 Dominions of India or Pakistan or to remain independent. The petitioner's co-Ruler, on behalf of both, executed an instrument of accession under Section 5 of the government of India Act, 1935, as adopted under the Indian Independence Act, 1947. This instrument was accepted by the governor General of India and the State thus became a part of the Dominion of India. Likewise, Rulers of most of the other Indian States also executed similar instruments which were accepted by the governor General. By the said instrument, the petitioner accepted the matters specified in the schedule thereto as matters with respect to which the Dominion Legislature may make laws for the State and declared his intent that the governor General of India, the Dominion Legislature, the Federal court and any other Dominion authority established for the purposes of the Dominion shall, subject to the terms of the instrument, exercise in relation to the Kurundwad State such functions as may be vested in them by the government of India Act, 1935 as in force in the Dominion of India on 15/08/1947. According to the petitioner, clause 7 of the Instrument provided that nothing therein shall be deemed to commit the Ruler in anyway to acceptance of any future Constitution of India or to fetter his discretion to enter into agreements with the government of India under any such future Constitution. Subsequently, a number of Rulers executed Agreements of Merger and transferred the administration of their States to the Dominion government. The Merger Agreement was in the form given in the 'White Paper on Indian States' and it was executed on 19/02/1948. Then the administration of the State of the petitioner was handed over on 8/03/1948. 198 The case of the petitioner is that under the Merger Agreement he was entitled to receive annually from the revenues of the State his privy purse as specified in the Merger Agreement (as amended by an order of government of a India in 1956 free of taxes, besides reserving his personal rights, privileges and dignities.
(3.) CERTAIN groups of States entered into covenants for the establishment of United States comprising the territories of the covenanting States and Talukas with a common executive, legislature and judiciary. The covenants inter alia provided for the administration of United States by a Rajpramukh aided and advised by a council of Ministers. They also envisaged the establishment of a Constituent Assembly charged with the duty to frame Constitution for the United States within the framework of covenants and of the Constitution of India. Each of the covenants was concurred in by the government of India which guaranteed all its provisions including provisions relating to the privy purse, personal privileges etc. etc. However, it was later desired that the Constitution of the United States should also be framed by the Constituent Assembly of India and form part of the Constitution of India. It was decided in consultation with the government of the United States that the Constitution of India as framed by the Constituent Assembly of India should itself contain all the necessary provisions governing the constitutional structure of the United States as well as the provisions for the guarantee contained in the covenants and the Merger Agreements. In pursuance of this decision the necessary provisions including Part VII providing for the government, legislature, judiciary, etc. of the United States as well as certain separate articles governing other matters, for example, the privy purse and privileges of Rulers bringing them within the framework of the covenants were included in the Constitution of India. Accordingly on 13/10/1949 the Constituent Assembly of India adopted inter alia two articles namely, Article 291 relating to payment of privy purse and Article 362 relating to personal rights and privileges of the Rulers. Amendments relating to the United States and other States which had not merged were also adopted and these States were called Part 'B' States. The Rulers and Rajpramukhs of the States agreed to adopt the Constitution as drafted by the Constituent Assembly of India and issued proclamations directing that the Constitution to be adopted by the Constituent Assembly of India shall be the Constitution for the United States. Supplementary covenants were also executed by the covenanting States which covenants were concurred in and guaranteed by the government of India. Thereafter, the Constituent Assembly passed and adopted the Constitution. According to the petitioner, it was ONLy on the basis of the Constituent Assembly's acceptance of the provisions of Articles 291, 362 and clause (22 of Article 366 that the Rulers adopted the Constitution of India in relation to their States. After the commencement of the Constitution of India and in pursuance of Article 366(22 thereof the petitioner was recognised as the Ruler of the Kurundwad State with effect from 26/01/1950 and had been in the enjoyment of the privy purse, privileges, titles and dignities issued by Merger Agreement and by the Constitution of India. While it was so, the Parliament enacted new Acts namely, the Constitution (Twenty-fourth Amendment) Act, 1971, the Constitution (Twenty-fifth Amendment) Act, 1971 and the Constitution (Twenty-sixth Amendment) Act, 1971, the last of 199 which received the assent of the President on 28/12/1971. By this Act,Articles 291 and 362 of the Constitution were repealed and a new Article 363-A a was inserted, resulting in depriving the Rulers of the recognition already accorded to them and declaring the abolition of the privy purse and extinguishing their rights and obligations in respect of privy purses and new clause (22 to Article 366 was substituted. Therefore, the petitioner is now challenging the impugned Amendment Act as unconstitutional and violative of the fundamental rights of the petitioner guaranteed under Articles 14, 19(l)(f), 21 and 31(1 and (2 of the Constitution. In this writ petition, 1.A. Nos. 1 to 3 of 1992 have been filed by Smt Kamakshidevi Yavaru, Smt Vishalakshideviyaru and Smt Indrakshi Devi,daughters of late Maharaja of Mysore.;