Thaivalappil Kunjuvaru Vareed vs The State Of Travancore-Cochin

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 90 of 1955

Decision Date: 1 December, 1955

Coram: B. Jagannadhadas, Vivian Bose, Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha

Thaivalappil Kunjuvaru Vareed filed a petition against The State of Travancore-Cochin, and the matter was heard by the Supreme Court of India on 1 December 1955. The judgment was authored by Justice B. Jagannadhadas, and the bench also comprised Justices Vivian Bose, Natwarlal H. Bhagwati and Bhuvneshwar P. Sinha. The petitioner was Thaivalappil Kunjuvaru Vareed and the respondent was the State of Travancore-Cochin. The judgment was delivered on the first day of December, 1955. The case is reported in the 1956 All India Reporter at page 142 and in the 1955 Supreme Court Reports (Second Series) at page 1022. The legal issue concerned the Constitution of India, specifically Articles 72, 161 and 238, and the prerogative right of pardon that had been vested in the Maharaja of Cochin and affirmed by Article XXI of the Covenant dated 29 May 1949 entered into between the Rulers of Travancore and Cochin. The Court was asked to consider whether that prerogative had been superseded and abrogated by the accession and integration of the United State of Travancore-Cochin with the Dominion of India and its subsequent absorption into the Union of India, and whether its continuance was consistent with Articles 62, 161 and 238 of the Constitution.

The headnote of the reported judgment recorded that a sentence of death had been passed on the appellant by the Sessions Judge of Trichur, which at the time of the conviction lay within the United State of Travancore-Cochin and earlier had been part of the former State of Cochin. That death sentence was confirmed by the High Court. Mercy petitions presented to the Raj Pramukh of Travancore-Cochin and to the President of India were rejected. The question for determination was whether the appellant could invoke the pre-existing power of the Maharaja of Cochin to grant a pardon in respect of a death sentence imposed by the courts of his State, given that the prerogative right had been affirmed by Article XXI of the Covenant dated 29 May 1949. The Court held that the pre-existing prerogative right of pardon vested in the Maharaja of Cochin must be regarded as having been superseded and abrogated in view of the events leading to the accession and integration of Travancore-Cochin with the Dominion of India, and its subsequent incorporation into the Union of India when the Constitution of India came into force on 26 January 1950. The continuation of such a prerogative was found to be inconsistent with Articles 72, 161 and 238 of the Constitution.

The judgment proceeded under the heading “Criminal Appellate Jurisdiction” and concerned Criminal Appeal No. 90 of 1955. The appeal had been filed by special leave from the judgment and order dated 17 June 1955 of the Travancore-Cochin High Court at Ernakulam in Criminal Miscellaneous Petition No. 113 of 1955 (R.T. No. 4 of 1954) and Criminal Appeal No. 136 of 1954. Counsel for the appellant was B. R. L. Iyengar and counsel for the respondent was Sardar Bahadur. The Court noted that the appeal by special leave arose under somewhat unusual circumstances. The appellant had been convicted of murder in Sessions Case No. 20 of 1954 by the Sessions Judge of Trichur, now part of the State of Travancore-Cochin, and sentenced to death. That sentence had subsequently been confirmed by the High Court, and an application for leave to appeal against it had been rejected.

The appellant had first sent mercy petitions to the Raj-Pramukh of Travancore-Cochin and to the President of India, and both petitions were turned down. After those petitions failed, the Sessions Judge issued a warrant on 29 March 1955 that scheduled the execution for 6 April 1955. On 1 April 1955 the Superintendent of Central Jail, Viyyur, wrote to the Sessions Judge informing him that the condemned prisoner had also sent a mercy petition to the Maharaja of Cochin and that no instruction had yet been received concerning that petition. The letter noted that the Sessions Division of Trichur lay within the former State of Cochin. The record did not show whether the petition to the Maharaja was filed before or after the earlier petitions to the Raj-Pramukh and the President had been decided. Upon receiving the Superintendent’s letter, the Sessions Judge concluded that the circumstances required postponing the execution and therefore stayed the warrant dated 29 March 1955. Later, on 30 May 1955, the Public Prosecutor applied to the Sessions Judge asking that the stay be withdrawn and that fresh directions be given to carry out the execution. The prosecutor argued that the mercy petition addressed to the Maharaja of Cochin was legally ineffective because the Maharaja had lost his sovereign authority over the former Cochin territory and consequently no longer possessed the power to grant pardons. The learned Sessions Judge accepted this argument, set aside the stay, and issued a new warrant, allowing the prisoner one week to seek a High Court appeal if advised to do so.

The prisoner appealed to the High Court, and after hearing arguments from both sides, the High Court judges concurred with the Sessions Judge’s reasoning and dismissed the appeal by judgment dated 17 June 1955. The present appeal challenged that High Court order. For the hearing, counsel was assigned to act as amicus curiae for the appellant, and all relevant constitutional provisions were fully and fairly presented before the Court. Counsel for the State was also heard. The Court was satisfied that the issue raised did not permit any substantial argument and that the conclusions reached by both the Sessions Judge and the High Court were correct. The entire basis for any argument on behalf

The appellant's case was founded upon the assumed continuing power of the Maharaja of Cochin to exercise the prerogative of pardon, remission or commutation of a sentence of death that had been imposed by the courts within his former State. That prerogative was said to have been confirmed by Article XXI of the Covenant dated 29 May 1949, which had been entered into by the Rulers of Travancore and Cochin for the creation of the United State of Travancore and Cochin. Article XXI reads in the following terms: “Notwithstanding anything contained in the preceding provisions of this Covenant, the Rulers of Travancore and Cochin shall continue to have, and exercise, their present powers of suspension, remission or commutation of death sentences in respect of any person who may have been, or is hereafter, sentenced to death for a capital offence committed within the territories of Travancore or Cochin as the case may be.” The appellant argued that, on the basis of this article, the power recognised in the Covenant remained vested in the Maharaja of Cochin even after he had lost sovereign authority over the territories that formerly constituted the State of Cochin, and that this surviving power gave rise to a legitimate cause of action. The Court, however, found this assumption to be untenable when examined against the sequence of events that led to the accession and integration of the United State of Travancore-Cochin with the Dominion of India, and its subsequent absorption into the Union of India after the Constitution of India came into force on 26 January 1950. A brief summary of the relevant historical developments is as follows. In August 1947 the Rulers of Travancore and Cochin each executed separate instruments of accession to the Dominion of India, following the pattern adopted by most other Indian States at that time. In May 1949 the two States merged to form a United State under a Covenant signed by each of the Maharajas, a Covenant whose provisions were guaranteed by the Government of India. It is the same Article XXI that had been cited earlier, providing for the continuance of the Maharaja of Cochin’s prerogative to commute death sentences within his former jurisdiction. The Covenant also stipulated that the then Ruler of Travancore would become the first Raj-Pramukh of the United State of Travancore-Cochin. Article IX of the Covenant expressly required that “The Raj Pramukh shall, within a fortnight of the appointed day, execute on behalf of the United State an Instrument of Accession in accordance with the provisions of section 6 of the Government of India Act, 1935, and in place of the Instruments of Accession of the Covenanting States.” Further, Article X(4) of the Covenant provided that “The Legislature of the United State shall, subject to the provisions of this Covenant, have full power to make laws for the United State, including provisions as to the Constitution of the United State, within the framework of this Covenant and the Constitution of India.” Pursuant to Article IX, the Raj Pramukh of Travancore-Cochin executed an Instrument of Accession on 14 July 1949, which was accepted by the Governor-General of India on 15 August 1949. By Article I of that Instrument it was declared that the United State acceded to the Dominion of India. In accordance with Article X(4), the legislative assembly of Travancore-Cochin resolved to adopt the Constitution framed by the Constituent Assembly of India. Consequently, the Raj Pramukh issued a proclamation on 24 November 1949 stating that with the inauguration of the new Constitution for the whole of India, the Government of India Act, 1935, which had governed the constitutional relationship between the State and the Dominion, would stand repealed, and that, in the best interests of the United State of Travancore and Cochin, it was desirable for the constitutional relationship to be aligned with that of the rest of India. This historical trajectory demonstrated that the sovereign powers of the Maharaja of Cochin, including the prerogative of pardon, were extinguished by the accession and the subsequent constitutional integration, rendering the appellant’s reliance on Article XXI without a surviving legal foundation.

The Instrument of Accession was dated 14 July 1949 and was accepted by the Governor-General of India on 15 August 1949; article I of that Instrument declared that the United State acceded to the Dominion of India. Pursuant to article X(4) of the Covenant, the Legislative Assembly of the State of Travancore-Cochin resolved that the Constitution framed by the Constituent Assembly should be adopted by the State. Following that resolution, the Raj Pramukh of Travancore-Cochin issued a proclamation on 24 November 1949. The proclamation began by observing that with the inauguration of the new Constitution for the whole of India being framed by the Constituent Assembly, the Government of India Act, 1935, which then governed the constitutional relationship between the State and the Dominion of India, would stand repealed. It further stated that, in the best interests of the United State of Travancore and Cochin, which was closely linked with the rest of India by a community of economic, political and other interests, it was desirable that the constitutional relationship already established with the Dominion of India should continue, albeit now strengthened, with the contemplated Union of India, and that the Constitution of India as drafted by the Constituent Assembly, which included duly appointed representatives of the State, provided a suitable basis for that continuation. The proclamation then noted that, by virtue of the power vested in the Raj Pramukh under the Covenant establishing the State, the Legislative Assembly had resolved that the Constitution framed by the Constituent Assembly be adopted by the State. Accordingly, the Raj Pramukh declared and directed that the Constitution of India, soon to be adopted by the Constituent Assembly, shall be the Constitution for the United State of Travancore and Cochin just as it would be for the other parts of India and shall be enforced in accordance with its provisions; further, that the provisions of that Constitution, from the date of its commencement, shall supersede and abrogate all other constitutional provisions inconsistent with it that were then in force in the State. For the purposes of the present case, the final paragraph of that proclamation is significant. When the Constitution of India came into force on 26 January 1950, the State of Travancore-Cochin became part of the Union of India and was placed among the Part B States under article 1, clause (2), together with Part B of the First Schedule. The Constitution expressly provided for a prerogative of mercy in respect of death sentences in articles 72, 161 and 238. Article 72 conferred that power on the President, article 161 on the Governor in a Part A State, and article 238(1) read with article 161 on the Raj Pramukh of a Part B State. In view of these provisions, the continuance of the Maharaja of Cochin’s prerogative to execute death sentences was called into question.

In this case, the Court considered whether the authority to grant death sentences that had been exercised by the Maharaja of the former State of Cochin could continue after the Constitution of India became operative. The Court observed that such authority would be at odds with the provisions of the new Constitution; consequently, that authority must be regarded as having been superseded and repealed, as indicated in the concluding paragraph of the proclamation referred to earlier. Accordingly, Article XXI of the Covenant of May 1949 could no longer be said to survive. The appellant also relied upon Article 372(1) of the Constitution, which states that, notwithstanding the repeal of the enactments mentioned in Article 395, and subject to the other provisions of the Constitution, all laws that were in force in the territory of India immediately before the Constitution’s commencement shall continue in force until they are altered, repealed, or amended by a competent legislature or other authority. The appellant argued that, under this clause, the criminal law of the former Cochin State remained effective even after the Constitution’s commencement and that the Maharaja’s prerogative of pardon formed an integral part of that law. The Court identified two difficulties with that argument. First, the continuation of any pre-Constitution law is conditioned by compatibility with the other provisions of the Constitution. Second, such continuation lasts only until a competent legislature alters, repeals, or amends the law. The Court noted that the Maharaja’s prerogative would conflict with Articles 72, 161 and 238 of the Constitution, which allocate the power of pardon to the President, the Governor of a Part-A State, and the Raj Pramukh of a Part-B State respectively.

The Court further examined the effect of the Code of Criminal Procedure (Amendment) Act, 1951 (Central Act I of 1951), which was enacted by the Union Legislature. That amendment extended the Code of Criminal Procedure, 1898, to the entire territory of India by substituting the words “whole of India except Part B States” with the words “whole of India except the States of Jammu and Kashmir and Manipur”. Consequently, the provisions of the Code, including sections 401, 402 and 402-A dealing with the commutation of sentences, became applicable to all Part-B States, including the former State of Cochin. By this legislative action, the Court held that the old Cochin law granting the Maharaja a pardon power must be considered repealed or abrogated by a competent legislative authority after the Constitution came into force. The lower courts had suggested that the legislature could not have removed the Maharaja’s prerogative because of Article 362 of the Constitution. The Court rejected that suggestion, observing that Article 362 concerns only the personal rights, privileges and dignities of the former Rulers, not the public power of pardon. The Court also pointed out that Article 21X of the Covenant, which created the pardon power, is distinct from the personal privileges addressed in Articles XVI and XVII of the Constitution. Since none of the appellant’s arguments survived scrutiny, the Court concluded that there was no substantive basis for the appeal and dismissed it.

The Court observed that the matters concerning “rights, privileges and dignities” had already been addressed in the covenant by means of Articles XVI and XVII. Article XVI provides that the ruler of each covenanting State, together with members of his family, shall be entitled to every personal privilege, dignity and title that they enjoyed, whether these were held inside or outside the State’s territories, as of the fifteenth day of August 1947. Article XVII(1) further declares that the succession, in accordance with law and custom, to the throne of each covenanting State and to the personal rights, privileges, dignities and titles of its ruler is guaranteed. The Court noted that these covenant provisions clearly delineated the scope of the ruler’s personal rights and the succession process, leaving no room for any additional claim. Consequently, the Court found that there was no substantive basis for any of the arguments advanced by the appellant. In light of this conclusion, the Court dismissed the appeal.