Skip to content


Bhimaji Narasu Mane Vs. Vijayasinvrao Ramrao Dale - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberCivil Ref. No. 2 of 1954
Judge
Reported inAIR1955Bom195; (1955)57BOMLR60; ILR1955Bom62
ActsConstitution of India - Articles 13, 13(2), 14, 291, 291(1), 362 and 366; Code of Civil Procedure (CPC), 1908 - Sections 85, 86, 87-B and 113
AppellantBhimaji Narasu Mane
RespondentVijayasinvrao Ramrao Dale
Appellant AdvocateM.P. Amin, Adv. General and V.T. Gambhirwala, Adv.
Respondent AdvocateK.S. Daundkar, Adv.;G.N. Joshi and ;D.P. Sethna, Advs.
Excerpt:
civil procedure code (act v of 1908), sections 87b, 85, 86(1)(3) - constitution of india, articles 13(2), 14, 362, 366(22), 291(1)--whether section 87b of code ultra vires of constitution--article 362 whether overrides article 14.;the provisions of section 87b of the civil procedure code, 1908, are not invalid under article 13(2) of the constitution of india.;article 362 of the constitution of india cannot override any of the provisions of part iii of the constitution. the direction given to parliament and the legislature of a state under article 362 must be carried out in consonance with the fundamental rights guaranteed under part iii.;the fundamental rights contained in part iii of the constitution are beyond assail and they are safeguarded and guranteed by the special machinery..........-- we find from the white paper on indian states that with regard, to this ruler the government of india guaranteed his personal rights, privileges, dignities and titles; and article 362 of the constitution casts an obligation upon parliament and the legislature of a state, in the exercise of the power to make laws or in the exercise of the executive power of the union or of a state, to give due regard to the guarantee or assurance given under any such covenant or agreement as is referred to in clause (1) of article 291 with respect to the personal rights, privileges and dignities of the ruler of an indian state, therefore, the personal rights of the rulers, which were guaranteed under the merger agreements,are now embodied in the constitution and form part of the constitution, and a.....
Judgment:

Chagla, C.J.

1. The plaintiff filed a suit in the Court of the Civil Judge, Junior Division, Jath, against the Raja-saheb of Jath, claiming certain reliefs. A preliminary objection was taken to the maintainability of the suit in view of the provisions of Section 87-B, Civil P. C. The learned Judge in a well-considered judgment, came to the conclusion that the provisions of Section 87-B were invalid by reason of Article 13(2) of the Constitution of India. In taking that view, he referred the cage to us for our opinion under the proviso to Section 113, Civil P. C., and this reference has now come before us.

2. Section 87-B which was incorporated in the Civil Procedure Code alter the Constitution was passed by Act II of 1951, applies the provisions of Section 85 and Sub-sections (1) and (3) of Section 86 to Rulers of any former Indian States; and 'former Indian State' is denned as 'any such Indian State as the Central Government may, by notification in the Official Gazette, specify for the purposes of this section', and 'Ruler', in relation to a former Indian State, means the person who, for the time being, is recognised by the President as the Ruler of that State for the purposes of the Constitution.

When we turn to Sections 85 and 86, Section 85 deals with persons to be appointed by Government to prosecute or defend on behalf of foreign Rulers and Section 86, Sub-clause (1), provides that no Ruler of a foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government, and Sub-clause (3) exempts a Ruler from being arrested except with the consent of the Central Government and also provides that no decree shall be executed against the property of any such Ruler. In this case, the plaintiff filed the suit without obtaining, the necessary consent of the Central Government and it was oh that ground that the maintainability of the suit was questioned before the learned Judge below.

3. Now, the view taken by the learned Judge --and there is considerable force in that view--is that under Article 14 of the Constitution there is equality before the law and it seems rather strange that in a democratic State the former Rulers of Indian States should not be as much liable to the process of the Court as any other citizen. One would expect that the rule of lawapplies to all citizens and every one in India issubject to that rule of law, and if Courts exist in order to enforce that rule of law, every one in India should be equally subject to the process of the Courts. But when one considers and interprets the Constitution of a country, one cannot overlook the historical context in which that Constitution came into existence.

The democratic state in India was born as a result of a unique and unprecedented revolution. However non-violent that revolution might have been and however much the Constitution has attempted to turn away from the past and to write a new chapter for the future of India, the state on which the past history was written has not been completely wiped out. Therefore, in considering the position of former Rulers of Indian States, one must consider their rights and privileges as they existed before the Constitution came into existence and how the Indian States ceased to have any independent existence and ultimately became merged with India and formed part of the Union of India'.

4. Turning first to Article 366, Sub-clause (22) defines 'Ruler' in relation to an Indian state as meaning

'....the Prince, Chief or other person by whom any such covenant or agreement as Is referred to in Clause (1) of Article 291 was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler;'

Turning to Art, 291, Sub-clause (1) provides that, where under any covenant or agreement entered into by the Ruler of any Indian state before the commencement of the Constitution, the payment of any sums, free of tax, has been guaranteed or assured by the Government of the Dominion of India to any Ruler of such State as privy purse, such sums shall be charged oh, and paid out of, the Consolidated Fund of India, and the sums so paid to any Ruler shall be exempt from all taxes on income. Therefore, the Ruler must satisfy two conditions: (1) he must have signed an agreement as provided by Article 291(1); and (2) he must be recognised by the President as the Ruler of the State.

Now, when we turn to the agreement which was signed by Ruler of Jath--the defendant in this case, whose privy purse is guaranteed under Art, 291(1) -- we find from the White Paper on Indian States that with regard, to this Ruler the Government of India guaranteed his personal rights, privileges, dignities and titles; and Article 362 of the Constitution casts an obligation upon Parliament and the Legislature of a State, in the exercise of the power to make laws or in the exercise of the executive power of the Union or of a State, to give due regard to the guarantee or assurance given under any such covenant or agreement as is referred to In Clause (1) of Article 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State, Therefore, the personal rights of the Rulers, which were guaranteed under the merger agreements,are now embodied in the Constitution and form part of the Constitution, and a constant reminder of these agreements is set out in Article 362.

Now, before the Constitution the position of the Indian Rulers was governed by Section 86, Civil P. C. and that section provided that a Prince or Chief may, with the consent of the Governor General in Council, certified by the signature of the Political Secretary, and in any other case with the consent of the Central Government, certified by the signature of a Secretary to that Government, be sued in any competent Court; and the Prince or Chief was to be in the same position as an ambassador or envoy of a foreign State. The amendment retains in Sections 85 and 86 the provisions with regard to ambassadors or envoys of a foreign State and also Rulers of a foreign State, and by Section 87B these provisions are made applicable to the Rulers of former Indian States who are recognised by the President as Rulers Of the Estates for the purposes of the Constitution.

Therefore, there can be no doubt that, before the merger agreement and before the Indian States merged with the Union of India, a Ruler of an Indian State had this privilege, namely, that he was exempt from being sued in Courts in British India without the consent of the Governor General. That personal privilege, along with other personal privileges that he might have enjoyed, was guaranteed by the merger agreement, and it Is with regard to that personal privilege along with the other personal privileges that Article 362 caste an obligation upon Parliament and the Legislature of a State to give due regard in passing any legislation.

5. It is sought to be argued by Mr. Joshi that Article 362 over-rides Article 14 of the Constitution. What is urged is that, although under Article 13(2) the State is prohibited from making any law Which takes away or abridges the rights conferred by Part III, and any law made in contravention of this clause, to the extent of the contravention, shall be void. Article 362 imposes upon Parliament the obligation to safeguard the privileges of the Rulers of former Indian States; and it is contended that, if Parliament passes a law safeguarding the privileges of an Indian Ruler, even if such law contravenes any of the fundamental rights guaranteed under Part III, that law cannot be declared to be void under Article 13(2). We are unable to accept that contention.

The fundamental rights contained in Part III are beyond assail and they are safeguarded and guaranteed by the special machinery contained in the Constitution itself; and powers are conferred both upon the High Court and the Supreme Court to see that these rights guaranteed to the citizen are not illusory but are substantial. It is impossible to accept the contention that Article 362 can over-ride any of the provisions of Part III of the Constitution. Unless any particular article of the Constitution expressly over-rides a fundamental right guaranteed under Part III, the Court cannot assume that any of the fundamental rights have been taken away by implication. The suggestion of Mr. Joshi really comes to this, that the very fact that the Constitution has cast anobligation upon Parliament to legislate with regard to certain matters clearly implies that legislation which falls under Article 362 cannot be considered to be bad, as contravening any of the provisions of Part III.

Now, Article 362 undoubtedly contains a direction given to Parliament and the Legislature of a State. But that direction must be carried out in con-sonance with the fundamental rights guaranteed under Part III. It may be unfortunate for the Ruler of an Indian State if a privilege guaranteed to him under the merger agreement happens to contravene one of the fundamental rights in Part III. But if it does contravene a fundamental right then the contractual right of the Indian Ruler must go and the fundamental right must be sustained.

Article 13 makes all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III, void, and it is difficult to accept the contention that, if all laws which in any way contravene a fundamental right were made void, a special sanctity was given to the contract between the Government, of India and the Ruler of a former. State, and the sanctity was that, even though a term of the contract may be inconsistent with any of the provisions of Part III, that term was to prevail over the fundamental right. If the case of the Union of India depended upon this contention and this reading of Article 362, we would have upheld the view taken by the learned Civil Judge.

6. But there is another aspect of the matter on which the Union of India is on much stronger grounds. The question that we have to consider is that, if Article 14 applies, as indeed it does, whether there has been any contravention of this article. Now it has been often said that Article 14 does not rule out the creation of a class or classes by the Legislature to which a particular law may not apply. But all that Article 14 lays down is that, when such a classification is made, the classification must be on a reasonable basis. Prime facie the Court must respect the classification made by the Legislature as the Legislature is in a much better position to understand and appreciate the complex problems of administration and of policy than a Court of law. But it is open to a citizen to challenge the classification and rebut the presumption which must be in favour of the Legislature and the question that we have to consider is whether that presumption has been rebutted Inthis case.

Now, it is true that, when there is a classification, the classification must apply to all members of the particular class contemplated. The classification would be inherently bad if some members of the class are omitted or excluded from the classification, and the view taken by the learned Judge is that the classification is bad because all the Rulers of Indian States are not exempted from being sued in a civil Court without the consent of the Central Government. With respect to the learned Judge, the error into which he has fallen is that the classification is not of all the Rulers of former Indian States; the classificationis of the Rulers recognised by the President and the President can only recognise the Rulers who have signed an agreement under Article 291.

All the Rulers have not signed an agreement referred to in Article 291(1), nor has a privy purse been given to every Ruler, nor has a privy purse seen guaranteed under Article 291. Therefore, there is a special class of Rulers recognised by the Constitution who have signed an agreement under Article 291(1) to whom the privy purse has been guaranteed and who have been recognised by the President. It is to this narrow and special class of Rulers that the exemption, under Section 87B applies; and it may also be mentioned that it is only to this special class that by the merger agreements their personal privileges have been guaranteed. We must remember that these Rulers at one time exercised absolute power over their states and they had great prestige, dignity and personal privileges. They gave up their States, they gave up their rule. Joined the Union of India, and for all practical purposes became political pensioners.

It is in consideration of their patriotic gesture that the Government of India have guaranteed to them the personal privileges which they enjoyed before the merger, apart from the substantial privilege of a privy purse. Can it be said that in- this background and in this contest it would be un- reasonable for the Legislature to classify these Rulers so that a special privilege with regard to being sued should be conferred upon them. In this connection, it is open to the Court to look at Article 362 also because Article 362 requires the Legislature to have due regard to the guarantee or assurance given under the merger agreement with respect to the personal rights, privileges and dignities of the Ruler of an Indian State.

Therefore, the Constitution-makers themselves felt that it was right and proper, even in a democratic setting, for Rulers to have certain privileges; and Parliament, in enacting Act II of 1951, has done nothing more than giving effect to the provisions of Article 362. Therefore, taking into consideration the past history, the antecedents of these Rulers, the merger agreement, and the directions to the Legislature contained in Article 362, it is impossible for us to say that there is no reasonable basis for the classification made under Article II of 1951.

7. The learned Judge has referred to 'Balsara's case' -- 'State of Bombay v. F. N. Balsara', AIR 1951 SC 318 and the test laid down by Fazl Ali J. in that case and he has particularly referred to the seventh test as appearing at p. 326, that:

'While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to we attained, and the classification cannot be made arbitrarily and without any substantial basis.'

Now, there is a reasonable and substantial distinction between the Rulers of former Indian States and other citizens in view of past history, and the object sought to be attained in this case is givingeffect to a solemn agreement arrived at between the Government of India and the Rulers. There is, undoubtedly a reasonable and just relation which the distinction, bears to the object sought to be attained. Therefore, in our opinion, even applying this test laid down by Fazl Ali J. the test is satisfied.

8 In our opinion, therefore, Section 87B of the Code is not 'ultra vires' of the. Constitution and the answer we give to the question submitted to us is that the provisions of Section 87B are not invalid under Article 13(2) of the Constitution.

9. Reference answered.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //