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In recognising or derecognising Ruler, the president exercises executive power and not political power (abolition of privy purse case)

H.H. Maharajadhiraja Madhav Rao Jivaji Rao
Scindia Bahadur v. Union of India,
AIR 1971 SC 530: (1971) 3 SCR 9: (1971) 1 SCC 85: 1971 Mer LR 78
JUDGES: M. Hidayatullah, J.C. Shah, S.M. Sikri, J.M. Shelat, V. Bhargava, G.K. Mitter, C.A. Vaidialingam, K.S. Hegde, A.N. Grover, A.N. Ray and I.D. Dua, JJ.

Date of Decision: 12-2-1970

The writ petitions under article 32 of the Constitution were filed by some of the Rulers as test cases to question the orders. They asked for a writ, direction or order, declaring the presidential order to be unconstitutional, mala fide, ultra vires and void, and for quashing it, a writ, direction or order declaring that the several petitioners continue to be Rulers and thus to be entitled to their respective privy purses and personal rights and privileges and a further writ, direction or order directing the Union of India to continue to pay the privy purses as before and to recognize the personal rights and privileges and to observe the provisions of the Covenants and Merger Agreements.

Whether dispute in respect of right to privy purse under article 291 is barred under article 363 or not.

It was held that the words of article 291 clearly raise an obligation on the Union of India to pay the privy purse. Our Constitution does not recognise any sequence of priorities. But that does not alter the fundamental character of a charge that it specifies a fund out of which satisfaction of the expenditure charged must be made, and the prescribed expenditure shall have priority in payment to the person for whose benefit, the expenditure is charged on the fund.

It was further held that, the Constitutional obligation to proceed in the manner set out in articles 112, 113 and 114 imposed upon the President and the Parliament implies a right in the person or persons in respection in respect of whom the expenditure is to be incurred. By leaving the payee innominate in article 291(a) no intention to raise an obligation without a corresponding right is disclosed. The expression “shall be charged on, and paid out of the Consolidated fund in article 291, is intended to enact that the privy purses” shall be charged on, and shall be paid out of the “Consolidated Fund”. The expression “sums so paid to any Ruler” does not mean “sums if paid to any Ruler”. It means that “sums when paid to any Ruler”. This article does not raise an imperfect obligation. An obligation which arises out of a constitutional provision to pay to the citizen sums of money in recognition of obligations of the predecessor Government can scarcely be called imperfect. Article 291 does not merely incorporate recognition of the obligation to pay the privy purse under Covenants incurred by the Government of the Dominion of India. It gives rise to a liability de hors the Covenants. It was finally held that the dispute in respect of right to privy purse under article 291 is not barred under article 363 of Constitution of India. The final order of the court was that the Orders made by President on 6 September, 1970, challenged in court were illegal and on that account inoperative and the petitioners would be entitled to all their pre-existing rights and privileges including the right to privy purses as if the Orders have not been made.

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