Virendra Singh and Others vs The State of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No.37 of 1953

Decision Date: 29 April, 1954

Coram: Vivian Bose, Mehar Chand Mahajan, B.K. Mukherjea, Natwarlal H. Bhagwati

In the matter styled Virendra Singh and Others versus the State of Uttar Pradesh, the Supreme Court of India issued its judgment on 29 April 1954. The opinion was authored by Justice Vivian Bose and was pronounced by a bench consisting of Justices Vivian Bose, Mehar Chand Mahajan, B. K. Mukherjea, Natwarlal H. Bhagwati, Natwar Lal H. Aiyyar and T. L. Venkatarama. The petitioners were identified as Virendra Singh and others, while the respondent was the State of Uttar Pradesh. The date of judgment is recorded as 29/04/1954 and the bench composition appears in the report as Bose, Vivian; Mahajan, Mehar Chand (Chief Justice); Mukherjea, B. K.; Bhagwati, Natwarlal H.; Aiyyar, Natwar Lal H.; and Venkatarama, T. L. The case is reported at 1954 AIR 447 and 1955 SCR 415 and is cited in numerous subsequent decisions, including RF 1955 SC 817, R 1958 SC 228, F 1958 SC 816, R 1960 SC 1355, R 1962 SC 445, R 1962 SC 1737, D 1963 SC 222, O 1964 SC 1043, RF 1967 SC 750, MV 1971 SC 530, RF 1973 SC 1461, E&R 1978 SC 68, RF 1981 SC 1946, and R 1990 SC 522. The substantive issue before the Court concerned the operation of the Constitution of India, specifically articles 5, 19(f), 31(1), the proviso to article 131 and article 363, as they related to the status of erstwhile Indian princely states that had become part of the Union, the power of a State Government to act in a manner characterised as an “act of State,” the concept of sovereign immunity of former rulers, and whether grants of jagirs and muafis made by those rulers before the Constitution could be set aside after the Constitution came into force when they had not been challenged earlier. The Court noted that the petitioners had received, in January 1948, grants of jagirs and muafis – one village from the Ruler of Sarila State and three villages from the Ruler of Charkhari State. In March 1948 a union of thirty-five states, including Sarila and Charkhari, was organised as the United State of Vindhya Pradesh. The Vindhya Pradesh Government affirmed those grants in December 1948, although its revenue officers subsequently interfered with the grants and questioned their validity. The integration of the states proved unsatisfactory, leading the same thirty-five rulers to execute an agreement in December 1949 that dissolved the newly created Vindhya Pradesh effective 1 January 1950, each ruler acceding to the Government of India all authority and jurisdiction of the former state. This agreement, known as the Vindhya Pradesh Merger agreement, contained an Article VIII stating: “No enquiry shall be made by or under the authority of the Government of India, and no proceeding shall be taken in any Court against the Ruler of any covenanting State, whether in a personal capacity or otherwise in respect of anything done or omitted to be done by him or under his authority during the period of his administration of that State.” Following the merger, the territories that had formed Vindhya Pradesh were reconstituted as a Chief Commissioner’s Province on 23 January 1950. Subsequently, on 25 January 1950, the four villages – referred to as enclaves – were removed from that province and merged into the United Provinces (present-day Uttar Pradesh) by an order issued by the Governor-General under the provisions of the Government of India Act, 1935.

The grant of four villages that had been made in favour of the petitioners in January 1948 was withdrawn in August 1952 by the Government of Uttar Pradesh after consulting the Government of India, and the operative portion of the revocation order was issued by the Governor of Uttar Pradesh. The Court held that the petitioners were entitled to a writ under article 32(2) of the Constitution because the order that revoked the grant of jagirs and muafis in the four villages breached the guarantees of article 31(1) and article 19(f) of the Constitution. The Court further observed that no State Government possessed the authority to carry out any act that could be characterised as an act of State.

The Court explained that the accessions by the Rulers of the former States and their acceptance by the Dominion of India constituted acts of State, and consequently no municipal court could question the competence of those accessions. It pointed out that article 363 together with the proviso to article 131 of the Constitution barred Indian courts from exercising jurisdiction over any dispute arising out of the accessions and their acceptance after the Constitution came into force. Accordingly, the only function that courts could perform was to record the fact of such accessions.

The Court examined the nature of the properties that were the subject of the dispute and found that the Rulers had an absolute right of disposition over those properties at the time the grants were made. The grants were described as absolute in character and, under any civilised legal system, would convey an absolute and indefeasible title to the grantees. Even assuming, without deciding, that the grants were defeasible at the will of the sovereign, the Court noted that the properties had neither been resumed by the former Rulers nor confiscated by the Dominion of India as an act of State. Up to 26 January 1950, the petitioners’ right and title to continue in possession remained valid.

The Court interpreted the Constitution as an instrument that, by virtue of authority derived from the people of India, eliminated all remnants of arbitrary and despotic power in the territory and over its citizens and lands, and prohibited the very kind of arbitrary exercise of power that the State sought to uphold in the present case. It observed that the representatives who sat in the Constituent Assembly did so not as conquerors and conquered, nor as ceding and absorbing parties, but as sovereign peoples of India, free democratic equals. Consequently, every vestige of sovereignty previously held by the Dominion of India and the former States was surrendered to the people who framed the new Constitution.

Under article 5 of the Constitution, the Court noted that all residents of the former Indian States—including the Rulers and the people of Sarila and Charkhari, those who made the grants, those who received them, and those who attempted to effect confiscation as an act of State—became citizens of India. Finally, the Court affirmed the principle that no sovereign can exercise an act of State against its own subjects and that an act of State can never be exercised against a person who has always been a citizen from the beginning of the territory’s incorporation into the State.

In the original jurisdiction, the matter arose as Petition No 37 of 1953 filed under article 32 of the Constitution of India. The petition sought a declaration that the order issued by the Governor of Uttar Pradesh on 29 August 1952, which revoked certain land grants made by the Rulers of Charkhari and Sarila in favour of the petitioners, should be held void. The petitioners were represented by counsel appearing on their behalf, while the respondent was represented by counsel for the State. An Intervener, the Government of India, participated through counsel that included the Solicitor-General for India and additional members of the legal team. The judgment was pronounced on 29 April 1954 by the presiding judge. The court noted that the petition raised a significant issue concerning the status of property rights after the Constitution came into force, particularly in respect of lands situated in former princely States that had acceded to the Dominion of India shortly before the Constitution and subsequently became an integral part of the Republic.

The two States involved, Charkhari and Sarila, had been independent entities under the paramountcy of the British Crown during the colonial period. They recognised the Crown as suzerain and owed a limited allegiance to it, but they did not owe allegiance to the Government of India. When India achieved independence in 1947 and became a Dominion under the Indian Independence Act of 1947, the Crown’s suzerainty over these princely States terminated pursuant to section 7 of that Act. In the aftermath, all but three of the princely States entered the Dominion by executing Instruments of Accession, and both Charkhari and Sarila were among those that did so. The authority to accept these accessions was conferred on the Dominion by a suitable amendment to the Government of India Act 1935, and the sovereignty of the acceding States was expressly recognised and protected. The text of each Instrument of Accession began with the formal declaration by the ruler that, in the exercise of his sovereignty, he executed the instrument. Clause 8 of the instrument clarified that nothing therein would diminish the ruler’s continued sovereignty or the exercise of any powers, authority or rights presently enjoyed, nor affect the validity of any law then in force in the State. Broadly, the accession preserved the rulers’ full autonomy except for three subjects—defence, external affairs and communications—which were transferred to the Central Government. Clause 6 further stipulated that nothing in the Instrument would empower the Dominion Legislature to enact any law for

In the instrument of accession, the clause that prohibited the Dominion legislature from enacting any law authorising compulsory acquisition of land for any purpose was retained. Around the same period, each acceding ruler entered into a stand-still agreement with the Dominion of India, which expressly stated that the agreement did not incorporate the exercise of any paramountcy functions. The alienations that later became the subject of dispute were effected in January 1948. On 5 January 1948, the ruler of Sarila conveyed the village of Rigwara to the petitioners, and on 28 January 1948, the ruler of Charkhari transferred the villages of Patha, Kua and Aichana to the same petitioners. Subsequently, on 13 March 1948, thirty-five princely states in the Bundelkhand and Baghelkhand regions, including Charkhari and Sarila, resolved to unite and form a single entity named the United State of Vindhya Pradesh. To implement that resolution, each of the thirty-five rulers signed a covenant on 18 March 1948, thereby bringing the new State into existence. It is noteworthy that this covenant represented a purely domestic arrangement among the rulers and was not a treaty with the Dominion of India. Although each ruler surrendered a portion of his individual sovereignty to the collective State, no additional sovereign powers were surrendered to the Dominion beyond those already transferred in 1947, namely defence, external affairs and communications. Consequently, the totality of the sovereignty that previously resided in each ruler was now consolidated in the whole and its constituent parts, and none of it was lost to the Dominion of India.

Shortly after the formation of Vindhya Pradesh, revenue officials of the newly created Union attempted to interfere with the grants that had been made by certain rulers before the integration, including the grants at issue in the present proceedings. These attempts prompted complaints to the Vindhya Pradesh Government, which, on 7 December 1948, resolved to respect the disputed grants. The order issued by the Revenue Minister on that date stated that after a comprehensive consideration of the matter, the Government would recognise grants executed by the rulers prior to signing the covenant, unless a contrary direction was issued by the State Ministry. Accordingly, orders were dispatched to the relevant revenue officers directing them to refrain from interfering with such grants. The decision was communicated to the rulers of Charkhari and Sarila on 13 March 1949, informing them that their grants would be honoured. The integration did not prove satisfactory, and on 26 December 1949 the same thirty-five rulers entered into a further agreement that terminated their covenant and dissolved the United State of Vindhya Pradesh effective 1 January 1950. By virtue of that instrument each ruler ceded to the Government of the Indian Dominion, effective from the same date, full and exclusive authority, jurisdiction and powers for the governance of his former state. Article II of the agreement provided that from that day the United State of Vindhya Pradesh would cease to exist and that all property, assets, liabilities, rights, duties and obligations of that State would become those of the Government of India.

The document that transferred authority over the former princely states was titled the Vindhya Pradesh Merger Agreement. The agreement named the Government of the Indian Dominion as a party, and the Secretary of the Ministry of States signed the instrument on behalf of that Government. Under the terms of the agreement each former ruler received a guaranteed privy purse together with all personal privileges, dignities and titles that he possessed at the date the agreement was executed. Article IV, clause 2 expressly provided that the amount fixed as a privy purse was intended to meet all expenses of the ruler and his family and that the amount could not be increased or decreased for any reason. Article VI stated that the Government of India assured that the succession to the throne of each covenanting state would continue in accordance with the applicable law and custom, and that the personal rights, privileges, dignities and titles of each ruler would be protected. Article VII dealt with the ownership of private property. Clause 1 declared that each ruler would retain full ownership, use and enjoyment of any private property (as distinguished from state property) that he owned at the moment he transferred administration of his state to the Raj Pramukh under the covenant. Clause 2 provided that any dispute as to whether a particular item of property was private or state property would be referred to a judicial officer nominated by the Government of India, and that the decision of that officer would be final and binding on all parties. Article VIII prohibited any enquiry or legal proceeding, whether instituted by the Government of India or any court, against a ruler of a covenanting state in respect of acts done or omitted to be done by him while he was administering his state.

The Dominion Government assumed control of the administration of the territories that had formed Vindhya Pradesh on 1 January 1950 and resolved to organize them as a Chief Commissioner’s Province. This re-organisation was effected by a notification of the Governor-General dated 22 January 1950, which brought the new province into existence on 23 January 1950. However, four villages that are the subject of the present dispute—referred to as enclaves—were removed from that province on 25 January 1950 and were incorporated into the United Provinces (now Uttar Pradesh) by an order of the Governor-General titled the Provinces and States (Absorption of Enclaves) Order, 1950. The order was issued under sections 290, 290-A and 290-B of the Government of India Act, 1935. Relevant excerpts of the order state that, from the appointed day, every enclave listed in the First Schedule would cease to be part of the surrendering unit and would become part of the absorbing unit. The order further provided that all property and assets located within an enclave, which immediately before the appointed day were vested in the government of the surrendering unit, would, from that day, vest in the government of the absorbing unit. These provisions formed the basis for the subsequent transfer of jurisdiction and assets concerning the enclaves in question.

The Order stated that any property or assets belonging to the Government of the surrendering unit would, from the appointed day, become property of the Government of the absorbing unit. It further provided that all rights, liabilities and obligations of the Government of the surrendering unit in relation to an enclave, whether arising from contracts or otherwise, would, from the appointed day, be taken over as the corresponding rights, liabilities and obligations of the Government of the absorbing unit. In addition, the Order declared that every law that was in force in an enclave immediately before the appointed day would cease to operate in that enclave from that day, and that the laws applicable in the absorbing unit would, from the appointed day, extend to the enclave and be enforceable therein.

The Constitution of India became operative on 26 January 1950, after which the question of revoking certain grants that had been settled by the Vindhya Pradesh Government on 7 December 1948 was reopened. On 29 August 1952, more than two and a half years after the Constitution had come into force and four and a half years after the grants in question had been made, the Government of Uttar Pradesh, acting in consultation with the Government of India, decided to revoke those grants. The Governor of Uttar Pradesh issued an order dated 29 August 1952 which was headed “Voidable grants of Jagirs and Muafis made by the Rulers of Charkhari and Sarila before the integration.” The order referred to endorsement No 3885/XV 110-1950 dated 30 September 1950 and stated that, after consulting the Government of India, the Governor had resolved to revoke the grants that the rulers of Charkhari and Sarila had made on or after 1 January 1948 to members of their families, relations and other persons. Copies of this order were sent to the Rulers of Charkhari and Sarila on 29 January 1953, which gave rise to the present petition under article 32 of the Constitution against the State of Uttar Pradesh. The Union Government was permitted to intervene in the proceedings.

The State of Uttar Pradesh responded with an affidavit. Paragraph 3 of the affidavit alleged that, either immediately before or after the signing of the integration agreement, certain rulers of the Indian States that formed the Vindhya Pradesh Union and whose territories had subsequently been absorbed into Uttar Pradesh, had granted jagirs and muafis of land to their close relatives in bad faith, thereby indirectly increasing their privy purses. Paragraph 4 claimed that the Vindhya Pradesh Government had initiated action against such bad-faith grants, and that, at its request, the Government of India had issued instructions to the Uttar Pradesh Government to take similar action. Paragraph 9 explained that the effect of those grants was to augment the privy purse of the ruler, whose duty it was to maintain the grantees.

The revocation order was issued by the Governor of Uttar Pradesh. Under the Constitution, a state government does not possess the authority to carry out an act that is characteristically an act of State. However, because the revocation had been undertaken after consultation with the Government of India, the court was asked to consider the Governor’s action as that of a delegate of the sovereign authority, whose act had been approved and ratified by that authority.

The Court considered whether the Governor of Uttar Pradesh should be regarded as a delegate of the supreme sovereign authority, whose action was approved and ratified by that authority, following the principles laid down in Buron v. Denman (1), The Secretary of State in Council of India v. Kamachee Boye Sahaba (2) and Johnstone v. Pedlar (3). On that footing, the Court examined whether the Union Government possessed the power to revoke the land grants as an act of State. Legal scholars expressed differing opinions on this point. At one extreme, the viewpoint advanced by the Privy Council in a series of decisions was highlighted. The effect of those decisions was summarised in Vajesingji Joravarsingji v. Secretary of State for India in Council (1) and again in Secretary of State v. Sardar Rustam Khan (5), which observed: “A summary of the matter is this: 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 a 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, through his officers, recognised. Rights that existed under the rule of predecessors avail him nothing. Moreover, even if a treaty of cession stipulates that certain inhabitants should enjoy particular rights, that does not give those inhabitants a title to enforce the stipulations in municipal courts. The right to enforce remains only with the high contracting parties.” The same theme appeared in Secretary of State in Council of India v. Kamachee Boye Sahaba (2) and in Johnstone v. Pedlar (6), where it was stated: “Of the propriety or justice of that act, neither the Court below nor the Judicial Committee have the means of forming, or the right of expressing, if they had formed, any opinion. It may have been just or unjust, political or impolitic, beneficial or injurious, taken as a whole, to those whose interests are affected. These are considerations into which their Lordships cannot enter. It is sufficient to say that, even if a wrong has been done, it is a wrong for which no municipal court of justice can afford a remedy.” According to the Privy Council in Secretary of State for India in Council v. Bai Rajbai (1) and also in Vajesingji Joravarsingji v. Secretary of State for India in Council (9), the burden of proving that the new sovereign has recognised the old rights rests on the party asserting those rights. The learned Solicitor-General relied upon these authorities. At the opposite extreme, the Court noted the contrasting view expressed by the Chief.

In this case the judgment referred to the observations of Justice John Marshall of the United States Supreme Court. Justice Marshall, speaking in the decision of United States v. Percheman (32 U.S. 51 (1833)), explained that it is highly unusual, even in situations of conquest, for a conquering power to do more than to displace the former sovereign and to assume dominion over the country. He observed that the modern usage of nations, which has become recognized as law, would be violated and that the sense of justice and right felt by the whole civilized world would be outraged if private property were generally confiscated and private rights annulled. He further noted that when peoples change their allegiance and their relationship to their ancient sovereign is dissolved, their mutual relations and their rights of property remain undisturbed. He argued that if this modern rule applies even in cases of conquest, its application to an amicable cession of territory cannot be doubted. The quotation continued to state that a cession of territory is never understood to be a cession of the property belonging to its inhabitants. The king may cede only that which belonged to him; lands he had previously granted were not his to cede. Consequently, neither the ceding party nor the acquiring party could understand the cession as an attempt to wrong individuals, a notion condemned by the practice of the whole civilized world. A cession identified by name from one sovereign to another, conveying the combined idea of surrendering both the lands and the people who inhabit them, would necessarily be understood to pass only the sovereignty and not to interfere with private property, as affirmed in citations (1) 42 I.A. 229 at 239, (2) 51 I.A. 357 at 361, and (3) 32 U.S. 51 at 86-87.

This view was later followed by Justice Cardozo in the 1937 decision Shapleigh v. Mier, where he affirmed that sovereignty was transferred while private ownership remained the same, and that to determine the title to the land today one must know where title stood while the land was still part of Mexico. The judgment also referred to Hyde’s International Law, Volume I, second edition, page 433, which records a principle laid down by the Permanent Court of International Justice. The Court’s Sixth Advisory Opinion of 10 September 1923, dealing with settlers of German origin in the territory ceded by Germany to Poland, stated that private rights acquired under existing law do not cease on a change of sovereignty. The opinion observed that no one denied that German civil law, both substantive and procedural, continued without interruption in the territory, and it could hardly be maintained that, although the law survived, private rights acquired under it had perished. Such a contention was said to be based on no principle and contrary to an almost universal opinion and practice. The opinion added that even those who contest the existence in international law of a general principle of state succession do not go so far as to deny that private rights, including those acquired from the state as owner of the property, remain valid against a successor in sovereignty.

In this discussion, the Court considered the proposition that private rights, including those that a person acquires from the State as the owner of property, become void against a successor in sovereignty. The counsel for the petitioners relied upon that proposition and sought support from the Privy Council decision in Mayor of Lyons v. East India Company, where Lord Brougham observed that it is universally accepted that when a foreign settlement is obtained in an inhabited country by conquest or by cession, the law of that country continues to operate until the Crown or the Legislature alters it. The citation to 299 U.S. 468 at 470 and the reference to I M.I.A., volume 175 at pages 270-271 were also noted. The Court, however, pointed out that Hyde, on page 432, imposes limitations on the doctrine, and that the authors of Corpus Juris: International Law, volume 33, page 415, state that in the absence of an express understanding, a conqueror does not assume the obligations of the conquered state. The Court further referred to the distinction drawn by Lord Alverstone, Chief Justice, in West Rand Central Gold Mining Company v. Rex, where, while commenting on American cases, he explained that a difference exists between private rights in land that have already been perfected before conquest and contractual rights that a private individual seeks to enforce against the new sovereign. Lord Alverstone warned that the obligations of a conquering state concerning private land differ fundamentally from obligations arising from personal contracts. He emphasized that cession does not amount to confiscation of individual property, and that when a piece of land has been transferred, pledged, or subjected to a lien, the considerations are distinct from those that arise when determining whether the conquering state must assume the contractual obligations of the previous sovereign. Lord Alverstone also observed that in the American cases relied upon by international jurists, the treaties of cession and subsequent United States legislation protected the rights of private owners as they existed at the moment of cession, so the crucial question in each case was whether any private property right actually existed at the relevant date. The Court noted that English law follows the same principle, as the Privy Council and the House of Lords have held that a new sovereign may waive its rights and recognize titles and rights that existed at the date of cession. Such recognition may be effected by legislation, by proclamation, or may be inferred from the manner in which the new sovereign deals with the property after the cession.

In discussing the effect of a cession on private rights, the Court referred to several authorities that examined the manner in which the United Kingdom and its agencies dealt with property after a treaty of cession. The cases mentioned included Forester v. Secretary of State for India in Council (legislation); Secretary of State v. Bai Rajbai (agreement, legislation and mode of dealing); Mayor of Lyons v. East India Company (waiver) together with a passage at page 285 dealing with relinquishment; and also Vajesinghji Joravarsinghji v. Secretary of State for India and Secretary of State v. Sardar Rustam Khan. Turning to the opinions of international jurists, Lord Halsbury observed that those opinions were merely statements of what the jurists thought the law should be and did not possess binding authority. He articulated this position in the House of Lords in Cook v. Sorigg, stating that it is insufficient to claim that, under ordinary principles of international law, a sovereign that accepts a cession must respect private property and assume the former sovereign’s duties toward that property. According to his reasoning, the well-understood rule of international law is that a change of sovereignty by cession should not disturb private property, but no domestic court has the power to enforce such an international obligation. He further explained that even if there is an express or an understood agreement between the ceding ruler and the acquiring government that private property shall be respected, such an agreement can only be enforced by one sovereign against another through diplomatic pressure, not by a municipal tribunal. This view received endorsement from the Privy Council in Secretary of State v. Sardar Rustam Khan and again from the House of Lords in Johnstone v. Pedlar. Lord Alverstone C. J. subsequently examined in detail the extent to which international law may be embraced and applied within municipal courts, referring to authorities such as the 1872-73 I.A. Supplement at page 17, the case reported at 42 I.A. 229 at page 237, the Indian Monthly Review at page 281, the Indian Appeals at page 361, the case reported at 681 I.A. 109 at page 123, the decision of the House of Lords in [1899] A.C. 572 at page 578, and the House of Lords decision in [1921] 2 A.C. 262 at page 281. He also mentioned the judgment in West Rand Central Gold Mining Company v. Rex, using it to illustrate the reasons supporting the conclusion that municipal courts are limited in enforcing duties derived solely from international law.

The learned counsel for the petitioners further relied on another limitation that English courts have placed on an act of State. He argued that even if a statutory right to confiscate land were recognized, that right would be deemed waived whenever the Crown or its officers acted under the colour of legal title without acting arbitrarily. He emphasized that arbitrariness is a fundamental element of an act of State. To support this contention, he cited Secretary of State in Council of India v. Kamachee Boye Sehaba, Forester v. Secretary of State for India in Council, and Johnstone v. Pedlar. He highlighted that the respondent’s affidavit demonstrated that the Government had decided to confirm all land grants except those that were mala fide, indicating that the action was not an arbitrary annexation but rather an attempt to exercise what was regarded as a legitimate legal right. The counsel therefore submitted that the State’s conduct did not constitute an unlawful or capricious act of annexation. The Court noted that it did not intend to pass on the broader constitutional implications at this stage, as the discussion was confined to the specific question of whether the State’s act was arbitrary or a lawful exercise of an alleged right.

The Court declined to examine the earlier authorities because, in its view, those decisions did not relate to the question before it, which was the effect of the Constitution on the peoples and territories that had become part of the Indian Union and thereby brought the Constitution into operation. The Court observed that the sequence of events leading up to the final accession on 1 January 1950 was relevant only as background history for the present dispute. It noted that at the moment of final cession, the Rulers of the former princely states of Charkhari and Sarila retained whatever limited sovereignty they possessed after the lapse of their paramountcy, except for the portion they had surrendered to the Dominion of India through their Instruments of Accession executed in 1947. The Court held that during the brief period in which they experimented with integration, the rulers did not lose any of this residual sovereignty. Although some aspects of that sovereignty were redistributed during the integration process, the Court said that the entirety of the rights and powers they held before integration was restored to each ruler when the United State of Vindhya Pradesh was dissolved and ceased to exist. Following that dissolution, each ruler acceded to the Dominion of India in his own right. The Court then affirmed that the accession agreements and the Dominion’s acceptance of those agreements constituted acts of State, citing the authorities at [1905] 2 KB 391 at 401-408, 1872-73 IA Supplt. 10 at 17, 7 MIA 476 at 531, and [1921] 2 AC 262 at 281. Such acts, the Court explained, lie beyond the enquiry of any municipal court, and after the Constitution came into force, no Indian court could claim jurisdiction to resolve disputes arising from them because of article 363 and the proviso to article 131. The only function available to the courts was to record the fact of accession, as indicated in section 6 of the Government of India Act 1935, which dealt with the accession of States. The Court then posed the question of what follows from this principle. Whether one follows the view expressed by the Privy Council or the broader approach suggested by Chief Justice Marshall, the Court observed that all authorities concur that the newly sovereign power may recognise existing rights in territories that have been conquered or ceded and may, by legislation or other means, apply its own laws to those territories. Moreover, the Court stressed that such laws are subject to examination and interpretation by the municipal courts of the absorbing State whenever the occasion arises. Turning to the facts of the present case, the Court noted that after the final accession, section 290-A of the Government of India Act 1935 was already in force in 1949. That provision provided that where the Dominion Government exercised full and exclusive authority, jurisdiction and powers over any Indian State or group of States, the Governor-General could, by order, direct that the State or group of States be administered in all respects as if it were a Chief Commissioner’s Province. The provision further stated that upon the issue of such an order, all the provisions of the Act applicable to a Chief Commissioner’s Province would apply to the State or group of States to which the order related.

The Court explained that the provisions applicable to the Chief Commissioner’s Province of Delhi were extended to any State or group of States for which an Order had been made under the Instrument of Accession. The final Instrument of Accession satisfied the requirement of subsection (1). Accordingly, the necessary Order was issued and the Chief Commissioner’s Province of Vindhya Pradesh, which at that time encompassed the property in dispute, was created on 23 January 1950. The Court observed that it was beyond dispute that confiscation of property could not be carried out as an act of State in the Chief Commissioner’s Province of Delhi. It was difficult to conceive of any confiscation occurring in an area that was being administered by the Dominion Government in all respects as a Chief Commissioner’s Province, even if the person in possession at that moment was not a national of the country—a premise that is not indisputable and which reflects the decision of the Privy Council in Mayor of Lyons v. East India Company(1). The Court noted that there appeared to be a clear election by the sovereign authority, expressed in its own legislation, to waive any right of confiscation even if such a right existed, a point that the Court did not decide. The same consequences applied when the disputed properties were incorporated into the State of Uttar Pradesh two days later, on 25 January 1950. The Privy Council, further advancing the principle in Mayor of Lyons v. East India Company at page 285, held that a waiver or relinquishment could be inferred from the treaty itself. The quoted passage states that the Crown may relinquish its prerogative and that, when the inhabitants of conquered provinces are granted the rights of subjects by treaty, the treaty signifies a voluntary abandonment of a Crown right, evidencing the sovereign’s intention to exempt the conquered territory from that branch of prerogative, with similar intent potentially derived from other circumstances. Nevertheless, the Court emphasized that the titles of the petitioners to the disputed lands had not been repudiated up to 26 January 1950. It was immaterial whether the Dominion Government’s right to confiscate remained in abeyance until exercised, because in fact that right was never exercised despite the agreement embodied in the Instruments of Accession and the relevant legislation and notifications. The Court then considered the effect of the non-exercise of those rights. Even under English law, a person in de facto possession retains certain rights in the land and is not wholly without a remedy; the issue is merely the appropriate means of redress. Referring to Johnstone v. Pedlar(1), Lord Atkinson, speaking in the House of Lords, remarked that “It

The Court observed that established authorities are clear that when a sovereign State causes injury to an individual, the nature of the act does not eliminate the existence of a legal wrong. Those authorities further state that the injured party cannot obtain a remedy by suing the very sovereign courts that inflicted the injury; instead, the aggrieved individual must rely on diplomatic action undertaken by the State of which he is a citizen. The Court then referred to the case of Forester v. Secretary of State for India, in which the Begum’s estate was the subject of a governmental attempt at confiscation presented as an act of State. The Privy Council determined that the Government had acted under the pretense of a legal title, meaning that the alleged resumption did not qualify as a true act of State and therefore could be examined by the courts. Consequently, the Lords examined the Begum’s title not on the basis of British authority but by reference to the sovereign power that existed prior to British rule. In a similar vein, the Court cited Mayor of Lyons v. East India Company, noting that the title of a foreign alien to land was upheld not through English law—which would have resulted in escheat—but through the law of India that originated from non-British sources, that is, the pre-cession laws of the land. The Lords affirmed that those indigenous laws persisted until formally altered, and consequently a title that would have been invalid under English law was nonetheless recognized. The Court further quoted the authorities that observed Calcutta was a district acquired in a country with its own people and government, and that for a long period no law could be introduced to disenfranchise aliens, just as such a law could not now be imposed upon that part of the former Asiatic or Portuguese territory. It was also noted that, as previously stated, the law of a country continues in force until the Crown or the legislature decides to change it. Lord Atkinson’s view in Johnstone v. Pedlar echoed this conclusion, asserting that even when the aggrieved party was an independent rajah whose property was seized after war and imprisonment by the East India Company, Sir John Romilly, as Master of the Rolls, held in Ex-Raja of Coorg v. East India Company that, despite being an act of State, the Company could be sued for any private property taken from the rajah that did not belong to him in his capacity as ruler. The Court therefore concluded that the authorities collectively demonstrate that a sovereign act causing injury does not extinguish the existence of a legal wrong, and that remedies must be sought through diplomatic channels or, where the act is not a true act of State, through ordinary judicial review of the underlying title.

After reviewing the authorities, the Court observed that regardless of whether the view of the Privy Council and the House of Lords or the view of Chief Justice Marshall was adopted, the petitioners—who were in actual possession of the lands in dispute— possessed enforceable rights over those lands. Those rights could have been vindicated in the Dominion courts up to 26 January 1950 against every person, the only possible exceptions being the Rulers who originally granted the lands and the State itself. The Court clarified that it was not suggesting that the petitioners were unable to enforce the rights against the Rulers or the Dominion of India, but that for the present case it was unnecessary to examine that specific controversy. Consequently, for the purposes of the present proceedings, it was sufficient to hold that the petitioners possessed the rights previously described. The cited authorities include [1921] 2 A. C. 262 and (1860) 29 Beav. 300. The Court then examined the scope of the petitioners’ rights. The properties in question were not State property such as public buildings; they were unequivocally properties over which the Rulers held absolute rights of disposition at the time the grants were made. The grants were of an absolute character and, under any civilized legal system, would convey an absolute and indefeasible title to the grantee. It may be conceded, as was argued though not decided, that such grants could be subject to the mere will of a sovereign who exercised absolute and despotic authority over his subjects in domestic matters. Nevertheless, the factual record showed that until that date the lands had neither been resumed by the former Rulers nor confiscated by the Dominion of India as an act of State. Accordingly, up to 25 January 1950 the petitioners’ right and title to remain in possession were sound against all parties except, at most, the Rulers and the Dominion of India. The Court then considered the effect of the Constitution on those rights. It held that the Constitution, drawing its authority from the people of the land, swept away in a single, sweeping stroke all remnants of arbitrary and despotic power within the territories of India and over its citizens and lands, and it prohibited the kind of arbitrary acts that the State now sought to justify. The Court allowed, without deciding, that the Dominion of India once possessed the powers now claimed by the Union Government, and that the same authorities acknowledging that power also recognised that it could be waived or relinquished. The Court therefore turned to the attitude of the Dominion toward the States it intended to incorporate into the Republic of India—a Republic that, as later proclaimed by its Constitution, would be free, sovereign and democratic. For this purpose the Court quoted the Government’s own statement as published in the White Paper on Indian States, specifically the remarks of Sardar Vallabhbhai Patel, then head of the States Department, dated 5 July.

The document dated 1947 was reproduced on page 157 of the White Paper and, on page 158, it contained the following declaration: “This country with its institutions is the proud heritage of the people who inhabit it. It is an accident that some live in the States and some in British India but all alike partake of its culture and character. We are all knit together by bonds of blood and feeling, no less than of self-interest. None can segregate us into segments; no impassable barriers can be set up between us. I suggest that it is therefore better for us to make laws sitting together as friends than to make treaties as aliens. I invite my friends, the Rulers of States and their people, to the Councils of the Constituent Assembly in this spirit of friendliness and co-operation in a joint endeavour, inspired by common allegiance to our motherland for the common good of us all.” The invitation recorded in that passage was formally accepted on 19 May 1949. Further, page 109 of the White Paper states: “As the States came closer to the Centre it became clear that the idea of separate Constitutions being framed for different constituent units of the Indian Union was a legacy from the Rulers’ polity which could have no place in a democratic set-up. The matter was, therefore, further discussed by the Ministry of States with the Premiers of Unions and States on 19 May 1949, and it was decided, with their concurrence, that the Constitution of the States should also be framed by the Constituent Assembly of India and should form part of the Constitution of India.” The Court observed that it is impossible to regard those who sat together in the Constituent Assembly, nor those who sent representatives there, as a conquering party and a conquered party, nor as sovereigns or their plenipotentiaries contracting alliances and entering treaties as high-ranking contracting parties to an act of State. Instead, they were present not as sovereign and subject, nor as citizen and alien, but as the sovereign peoples of India—free, democratic equals—who were shaping a new pattern of life for the common good. Every vestige of sovereignty was abandoned by the Dominion of India and by the princely States and surrendered to the peoples of the land, who through their representatives in the Constituent Assembly drafted a new Constitution in which all became citizens of a new order possessing a single identity and owing a single allegiance of devotion, loyalty and fidelity to the Sovereign Democratic Republic of India. In one decisive act all other territorial allegiances were erased, the past was obliterated except where expressly preserved, and a new order emerged, its allegiance rooted in the same source for all: the sovereign will of the peoples of India, without class, caste, race, creed, distinction or reservation. The Preamble to the Constitution accordingly proclaims: “We, the People of India, having solemnly resolved to constitute India into a Sovereign…”

In the judgment the Court observed that the pre-amble of the Constitution declared India to be a Democratic Republic and committed to securing Justice, Liberty, Equality and Fraternity for all citizens. The Court recorded that the Constituent Assembly, on the 26th day of November 1949, formally adopted, enacted and gave to the people this Constitution. The Court then explained that Article 1 (1) provides that India shall be a Union of States and that clauses (2) and (3) describe the territories that constitute the Union. The Court noted that those territorial definitions encompass the lands that are presently the subject of dispute. Further, the Court pointed out that Article 5 defines the class of Indian citizens and that, under this broad definition, the rulers of Charkhari and Sarila who granted the lands, the petitioners who received the grants, and the present respondents who seek to confiscate the lands by invoking an act of State, are all included as citizens. The Court stated that a sovereign power cannot lawfully exercise an act of State against its own subjects. It acknowledged that the proposition may be debated when the citizen in question was previously an alien and the right to act was only dormant until exercised, but emphasized that there has never been any doubt that an act of State can never be directed against a person who has been a citizen from the outset in a territory that has always belonged to the State attempting to exercise the right. The Court further affirmed that this principle holds even when English authorities, which sometimes grant broader powers to the State, are considered. Citing Lord Atkinson in Johnstone v. Pedlar (1) at page 281, the Court reproduced the observation that Lord Halsbury’s judgment clearly indicates that the Government cannot defend an act done to its own subject by claiming it was an act of State, because the subject cannot rely on his own sovereign to exert diplomatic pressure against himself to correct the wrong. The Court added that, consistent with this principle, the decision in Walker v. Baird (2) held that when British subjects sued for trespass within British territory during peace, the claim that the trespass was an act of State did not bar the municipal courts’ jurisdiction. The Court then quoted Lord Phillimore at page 295, stating that there can be no act of State between Her Majesty and one of her subjects. Turning to Lord Brougham’s remarks in Mayor of Lyon v. East India Company (3), the Court cited the passages at pages 284-285 which declared it untenable to treat the inhabitants of a conquered country, whether born before or after the conquest, as aliens after they become denizens of the conquering state, calling the notion absurd and noting that the lower court had recognized conquest as a form of “virtual naturalisation”. The Court concluded, however, that in the present matter there was no issue of conquest or cession, and that the new Republic had been born.

On 26 January 1950, the Constitution of India came into force, and all persons acquired their citizenship rights from the same source at the same moment in time. In the same instant and for the same reason, every piece of land within the boundaries of the newly formed Republic became part of the territory of India. The judgment notes the citations (1) [19211 2 A.C. 262. (3) 1 M.I.A. 175. (2) [1892] A A.C. 491. to support this proposition. From the perspective of the new State, there existed a unity of possession, a unity of interest, a unity of title and a unity of time. This unity reflected the intention of the Union Government as expressed in its White Paper, and even if the situation were still characterised as a cession, there was clear evidence of relinquishment and waiver. At page 115 of the White Paper it is stated, “With the inauguration of the new Constitution, the merged States have lost all vestiges of existence as separate entities.” At page 130 it is further explained that the new Constitution of India embodies the changed conception of Indian unity brought about by the ‘unionisation’ of states, and at page 131 it declares, “Unlike the scheme of 1935 the new Constitution is not an alliance between democracies and dynasties but a real union of the Indian people built on the concept of the sovereignty of the people. All the citizens of India, whether residing in States or Provinces, will enjoy the same fundamental rights and the same legal remedies to enforce them. In the matter of their constitutional relationship with the Centre and in their internal set-up, the States will be on a par with the Provinces. The new Constitution therefore finally eradicates all artificial barriers which separated the States from Provinces and achieves for the first time the objective of a strong, united and democratic India built on the true foundations of a co-operative enterprise on the part of the peoples of the Provinces and the States alike.” The Court observes that it does not find a contrary intention in the Government’s will. It further notes that the country is no longer concerned with principalities and fragmented powers. The judgment metaphorically remarks, “We have upon us the whole armour of the Constitution and walk from henceforth in its enlightened ways, wearing the breastplate of its protecting provisions and flashing the flaming sword of its inspiration.” It was not denied that if the present action of the State cannot be justified as an act of State, it cannot be saved under any provision of law. The Court refrains from expressing an opinion on whether the State has the right to set aside the grants in ordinary courts or to deprive the petitioners of their properties by legislative action. It is sufficient to state that the State’s present action cannot be defended. Accordingly, Article 31(1) of the Constitution and Article 19(f) are attracted, and the petitioners are entitled to a writ under Article 32(2). The Court therefore ordered that a writ be issued to restrain the State of Uttar Pradesh from giving effect to the impugned orders and to direct it to restore possession to the petitioners, if possession had been taken away.

In this matter the Court observed that, should it be established that possession of the property in question had been taken, the State of Uttar Pradesh was required to meet the costs incurred by the petitioners. The Court stipulated that the financial burden of those costs would fall on the State and not on the petitioners themselves. In addition, the Court made clear that the intervener in the proceedings would be responsible for its own costs and would not be indemnified by either party. By setting out these cost allocations, the Court ensured that each participant would bear the expenses appropriate to its role in the case. After addressing the issue of costs, the Court proceeded to grant the relief sought by the petitioners. The Court therefore allowed the writ that had been filed, thereby issuing an order that restrained the State of Uttar Pradesh from implementing the contested orders and directing it to restore possession to the petitioners, subject to the cost provisions previously outlined.