Report No. 27

Section 87B

1. In a recent Supreme Court decision1 while upholding the validity of the section the following observations were made:-

"Before we part with this matter, however, we would like to invite the Central Government to considerseriously whether it is necessary to allow section 87B to operate prospectively for all time. The agreements made with the Rulers of Indian States may, no doubt have to be accepted and the assurances given to them may have to be observed. But considered broadly in the light of the basic principle of the equality before law, it seems somewhat odd that section 87B should continue to operate for all time.

For past dealings and transactions, protection may justifiably be given to Rulers of former Indian States but the Central Government may examine the question as to whether for transactions subsequent to the 26th of January, 1950, this protection need or should be continued. If under the Constitution all citizens are equal, it may be desirable to confine the operation of section 87B to past transactions and not to perpetuate the anomaly of the distinction between the rest of the citizens and Rulers of former Indian States. With the passage of time, the validity of historical considerations on which section 87B is found will wear out and the continuance of the said section in the Code of Civil Procedure may later be open to serious challenge.".

2. Since a decision as to the action to be taken in view of these observations involves matter of policy also, it is felt that the action to be taken should be left to be considered by the Government.

3. The section, was inserted by the Amendment Act (2 of 1951) by which the other sections (83 to 86) were also 're-cast. Before the Act of 1951, sections 85 and 86 applied to suits against a "sovereign prince or Ruling chief". So long as the Indian States existed as separate entities, i.e. up to their merger either into a Union of States or with the then existing Dominion of India or Provinces, etc.), there was no doubt that the Rulers of those States were in, the category-"sovereign chief or Ruling prince"-and suits against them were barred except with the consent of the Central Govemment2-3. During the period between their merger and the passing of the Act 2 of 1951, the position was not very definite. It was held in one Bombay case4 that after merger, the appellant in that case (the ex-Ruler) was no longer a "sovereign chief or Ruling prince". But there are cases to the contrary5.

In one Supreme Court case6, it has been observed that the protection under section 86, as it stood before the Constitution, "continued in view of Article 372 of the Constitution (unless it was void under the Chapter on fundamental rights) till we come to the enactment of Act 2 of 1951".

4. As a matter of policy, Government decided to make this exemption available to Rulers of former Indian States, and accordingly, the Amendment Act of 1951 made the necessary provisions.

5. Discussions in White Paper.-The following extract from the White Paper on Indian States explains the background of these provisions7:-

"240. Guarantees regarding rights and privileges.-Guarantees have been given to the Rulers under the various Agreements arid Covenants for the continuance of their rights, dignities and privileges. The rights enjoyed by the Rulers vary from State to State and are exercisable both within and without the States. They cover a variety of matters ranging from the use of red plates on cars to immunity from Civil and Criminal jurisdiction and exempted from customs duties, etc.

Even in the past it was neither considered desirable nor practicable to draw up an exhaustive list of all these rights. During the negotiations following the introduction of the scheme embodied in the Government of India Act, 1935, the Crown Department had taken the position that no more could be done in respect of rights and privileges enjoyed by the Rulers than a general assurance of intention of the Government of India to continue them. Obviously it would have been a source of perpetual regret if all these matters had been treated as justiciable.

Article 363 has, therefore, been embodied in the Constitution which excludes specifically the Agreements of Merger and the Covenants from the jurisdiction of Courts except in cases which may be referred to the Supreme Court by the President. At the same time, the Government of India considered it necessary that constitutional recognition should be given to the guarantees and assurances which the Government of India have given in respect of the rights and privileges of Rulers. This is contained in Article 362, which provides that in the exercise of their legislative and executive authority, the legislative and executive organs of the Union and States will have due regard to the guarantees given to the Rulers with respect to their personal rights, privileges and dignities.".

6. Another recent decision of the Supreme Court8 holds, that where a person applies for consent under section 87B in respect of a certain property i.e. for filing a suit against a Ruler in respect of certain property, and the Government grants partial and conditional consent to the applicant after going through the merits of the applicant's claim, that introduces an infirmity in the sanction and such sanction is invalid, with the result that it is to be construed as extending to all the properties in respect of which the sanction was applied for. The judgment points out, that section 87B authorises the Government either to accord or to refuse to accord such consent. "It is not open to the Central Government to impose any conditions on such consent, or to accord consent only in part, or to refuse it in part, particularly in cases where the relief are claimed on one and the same cause of action."

7. It is considered unnecessary to alter the language of the section on this point.

1. Naroram Kishore Deb Varma v. Union of India, AIR 1964 SC 1590 (October 1964).

2. Gaekwar Rly. v. Hafiz, AIR 1938 PC 165.

3. Govind Ram v. Gonda! State, AIR 1950 PC 99.

4. The Bombay case was in respect of a suit filed in December, 1948 (case relating to the Ruler of lands in the former principality of Vajiria merged in the Dominion of India). See Thakore Saheb Khanji Kashari Khanji v. Gulam Rasul, AIR 1955 Born 449 (Bavdekar J.).

5. Kant Narain v. Chandra Bhal, AIR 1951 All 603, holding, that in view of section 86 as it stood then, and of the merger agreement which guaranteed personal privileges, etc., the Ruler of Benares could not be sued.

6. Mohan Lal v. Sawai Man Singh Ji, AIR 1962 SC 73 (74-75).

7. White Paper on Indian States, p. 125, para. 240.

8. Maharaj Kumar Tokendra Bir Singh v. Secretary to the Government of India, Ministry of Home Affairs, New Delhi, Writ Petition No. 123 of 1963 decided on 23rd March, 1964.

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