The native Indian rulers were undoubtedly sovereign in the territories under their jurisdiction and they parted with their sovereignty in stages, firstly on accession, then on integration and finally by what has been felicitously termed in the White Paper on Indian States as ‘unionization’ i.e., by State territory becoming part and parcel of the territory of the Union of India which meant the complete extinction of their separate existence and individual sovereignty and of their States as separate political units :
(1) There were two schools of thought as regards the effect of a change in sovereignty in respect of the enforceability of the rights of private individuals against the succeeding sovereign. At one end of the scale were the decisions of the Privy Council which proceeded on the acceptance of the principle, that rights enforceable against the previous ruler or sovereign ceased to be enforceable by the Municipal Courts of the succeeding sovereign unless and until a competent authority or organ of the succeeding sovereign recognised those rights. The passage in the judgment of Lord Dunedin in Vajesinghji’s case, (supra) was typical of this view. On the other hand, there was another and, if one might say so, an opposite view expressed in the decisions of the Supreme Court of the United States of which the classic exposition by Chief Justice Marshall in Percheman’s case, (supra) was typical, that the proper and just rule of Public International Law which should be given effect to by municipal courts was that changes in sovereign over a territory did not or should not have any effect on the rights of the private individuals even as regard the enforceability of their claims as against the State and that it was the obligation certainly moral, if not also legal, of the succeeding sovereign to give effect to such rights previously acquired by grant from the previous sovereign. After pointing out these divergent views the learned Judges, in Virendra Singh’s case, (supra) considered it unnecessary to express their opinion as regards the correctness or acceptability of either view, but proceeded, however, on the assumption that the constitutional doctrine as enunciated by the Privy Council appealed to the facts of the case before them.
(2) Starting from the position that the petitioners obtained a good title; to the villages granted to them by the rulers of Sarila and Charkari they proceeded to analyse the nature of the title which they had under the grants. As a result of this examination they arrived at the conclusion that even on the basis of the decisions of the Privy Council, their title was only voidable at the option of the succeeding sovereign. They recognised that he changes that took place in the constitutional position of the State of Charkari and Sarila undoubtedly brought in a change in the sovereignty of that territory and hold that the changes thus brought about including the treaties which marked the transition were “Acts of State” and that the interpretation or enforcement of rights under the treaties was outside the jurisdiction of municipal courts. The petitioners, they held, could not, therefore obtain any advantage by reliance on any provision in the treaty safeguarding their rights, for apart from the treaties being “Acts of State” they were engagements between two sovereign States and enforceable between them at the instance of the high contracting parties through diplomatic channels and not by recourse to municipal courts, and the petitioners not even being parties to the treaties could not obviously claim any right to enforce them. In this connection the terms of Art. 363 of the Constitution which contained an express embargo on the enforcement by the municipal courts of the provisions of these treaties were adverted to as reinforcing this position.
(3) If guarantees contained in the treaties be put aside, the next question to be considered was whether the Governments which emerged as a result of the Constitution, were competent to avoid or repudiate the titles obtained by the petitioners under the previous ruler by an “Act of State”. They answered this question in the negative for four reasons:
(i) The Constitution emerged as a result of the conjoint action of the subject of the former Indian rulers and the people of former British India. When as a result of this joint effort the Constitution was brought into existence there was no question of conquest or cession so as to attract those doctrines of Public International Law relating to the effects of rights arising out of changes in sovereignty brought about by conquest, cession, treaty etc.
(ii) The subjects of the former Indian rulers became, when the Constitution emerged, Indian citizens, and as against its own subjects or citizens there was no question of any “Act of State” by any Indian Government.
(iii) Even if the previous rulers had vested in them autocratic powers to revoke grants made by them in favour of their subjects, the Government of the Union and States which were functioning under a Constitution which contained fundamental rights guaranteeing protection of property rights against arbitrary executive action could not claim to exercise those arbitrary powers which they might have inherited from the previous rulers, and
(iv) The petitioners had at the commencement of the Constitution a possessory title to the property granted to them and had also a right at that date, to continue in possession unless and until their title which was voidable was extinguished by repudiation by the Governments which were established by the Constitution. These proprietary rights were, however, protected by Arts. 19(1) (g) and 31 (1) of the Constitution and so the petitioners could not be deprived of their proprietary rights except by competent legislation enacted after the commencement of the Constitution.
In Virendra Singh’s case, (supra) this Court held that even on the basis that the merger of the Indian States in the Indian Union and the treaties by which that was accomplished were acts of State, still by reason of the manner in which the Constitution of India was brought into being and because of the provisions which it contained, in particular those guaranteeing property rights of its citizens, the acquired rights of the inhabitants of the Indian State quoad their rulers could not, after the Constitution, be annulled or abrogated by arbitrary executive action on the part of the Union or State Governments. The learned Judges thus assumed as correct the rule of Public International Law relevant to that context expounded by the Privy Council in a number of decisions rendered on appeals from the Indian High Courts. For this reason we consider that it would be convenient for a proper appreciation of the points now in controversy to premise the discussion by briefly setting out the principles underlying these decisions of the Privy Council, reserving their detailed examination to a later stage. These principles have been tersely summarised and the ratio of the rule explained by Lord Dunedin in Vajesinghji v. Secretary of State for India, 51 Ind App 357 in a passage which has been often quoted in later cases on the subject and we consider that it would be sufficient if we extract it. The learned Lord said:
“When a territory is acquired by a sovereign state for the first time that is an act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. ‘Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has though his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing.’ Nay more, even if in treaty of cession it is stipulated that certain inhabitant could enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the high contracting parties.” .
- This has been accepted as expressing the constitutional law of the United Kingdom and the same has been applied not merely to claims or titles which were sought to be enforced against the Indian Government but also in other parts of the British Empire – See Cook v. Sprigg. (1899) AC 572. This was the law laid down and given effect to by the Privy Council until India attained independence.
- (1955) 1 SCR 415 however, struck a different note particularly as regards the matters covered by the sentence we have underlined (shown in ‘) in Lord Dunedin’s exposition of the law, and to this decision we shall immediately turn. The fact of the case were briefly these:On January 5, 1948, the ruler of Sarila granted the village Rigwara to the petitioners who moved this Court while on the 28th of January, 1948 the ruler of Charkari granted certain other villages to the same petitioners. As the rights of the petitioners were sought to be nullified by an order of the Government of Uttar Pradesh they filed a petition under Art. 32 of the Constitution praying that the order of the Government of Uttar Pradesh revoking the grants in their favour be declared void and for consequential reliefs.
- A few more facts in regard to the constitutional history of these two States is necessary to be stated to appreciate some of the matters which figured in the decision in Virendra Singh’s case, (supra). After the date of the grant in favour of the petitioners 35 States in Bundelkhand and Bhagalkhand, including Charkari and Sarila agreed to unite themselves into a State to be called the United State of Vindhya Pradesh. While this Union was in existence, certain officials of this Government interfered with the rights of the petitioners but the Government of the United State of Vindhya Pradesh issued orders directing the officers to abstain from such interference. Subsequently the rulers of the 35 States dissolved their Union and ceded to the Government of India Dominion all their powers and jurisdiction and the Dominion constituted the area into a Chief Commissioner’s province for the purpose of administration, but the four villages granted to the petitioners were however, detached from the centrally administered State and absorbed into Uttar Pradesh. On August 29, 1952 the Governor of Uttar Pradesh revoked the grants made in favour of the petitioners. The question before the Court was whether this order of revocation of he grants made by the former rulers was justiciable in courts and if justiciable, valid.
- The judgment of the Court was delivered by Bose, J. The learned Judge after stating the question arising for decision as being “whether the Union Government had the right and the power to revoke these grants as an act of State ?”, pointed out that jurists had held divergent views on this matter. At one extreme, he said, was the view expressed by the Privy Council in a series of cases to which reference was made and as summarising their effect the passage from the judgment of Lord Dunedin we have extracted already was cited. At the other extreme was the view of the Marshal, C. J., in United States v. Percheman, (1831-34) 7 Pet 51 at pages 86-87 from which he quoted the following:
“It may not be unworthy of remark that it is very unusual, even in case of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilised world would be out raged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory ? …… A cession of territory is never understood to be a cession of the property belonging to the inhabitants. The king cedes that only which belonged to him. Lands he had previously granted were not his to cede. Neither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilised world. The cession of a territory by its name from one sovereign to another, conveying the compound idea the surrendering at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and not to interfere with private property.” After referring to a few other decisions of the English Courts the learned Judge proceeded:
“We do not intend to discuss any of this because, in our opinion, none of these decisions has any bearing on the problem which confronts us, namely, the impact of the Constitution on the peoples and territories which joined the Indian Union and brought the Constitution into being **
Now it is undoubted that the accessions and the acceptance of them by the Dominion of India were acts of state into whose competency no municipal court could enquire; nor any Court in India, after the Constitution, accept jurisdiction to settle any dispute arising out of them because of Article 363 and the proviso to Article 131; all they can do is to register the fact of accession …… But what then; Whether the Privy Council view is correct or that put forward by Chief Justice Marshall in its broadest outlines is more proper, all authorities are agreed that it is within the competence of the new sovereign to accord recognition to existing rights in the conquered or ceded territories and, by legislation or otherwise, to apply its own laws to them and these laws can, and indeed when the occasion arises must, be examined and interpreted by the municipal Courts of the absorbing State.”
The learned Judge then went on to point out that the title of the petitioners to the disputed villages had not been repudiated upto January 26, 1950. Because of the non-exercise of the right to repudiate till that date, the petitioners were admittedly in de facto possession of the villages and the learned Judge adverted to the circumstance that those possessory right could have been asserted and enforced against all persons except the rulers who granted the lands, and except possibly the succeeding State. Considering it unnecessary to pronounce whether these rights could be enforced against the rulers as well as the Dominion of India as the succeeding sovereign, he observed that as these rights were factually in existence at the date of the Constitution and as by that date the subjects of the rulers of Charkari and Sarila had become the subjects of the Union, there could be no question of the Union Government claiming to exercise an “act of State” operating to deprive the petitioners of their property following in the respect the well-known decisions of Walkar v. Baird, 1892 AC 491 and Johnstone v. Pediar, 1921-2 AC 262. He further explained that “the Constitution by reason of the authority derived from and conferred by the peoples of this land blotted out in one magnificent sweep all vestiges of arbitrary and despotic power in the territory of India and over its citizens and lands prohibited just such acts of arbitrary power as the State now seeks to uphold.”
The passage extracted and indeed the entire judgment is replete with a description of the poetry of India’s constitutional evolution as an unified State during the most momentous period of her history from the Declaration of Independence on August 15, 1947, to the coming into force of the Constitution on January 26, 1950 and of the saga of the march of the subjects of the former Indian princes from being subjects of an autocratic ruler to a modern democratic set up in which they are full-fledged citizens of India, in language at once picturesque and of authentic eloquence. We should not be understood to minimise in nay manner the political significance of the events described or underrate their importance, content or meaning if we differ somewhat from certain of the conclusions drawn on matters which are relevant for the purposes of the points arising for decision in these appeals.
Refer : AIR 1964 SC 1043 : (1964) 6 SCR 461 – SUPREME COURT OF INDIA
State of Gujarat Versus Vora Fiddali Badruddin Mithibarwala AND OTHERS