Article 363 Bar and the Privy Purse–Malikhana Distinction: Kerala High Court on Non-Justiciability of Pre-Constitution Covenant Claims

1. Introduction

Case: SANOOP VV v. THE STATE OF KERALA (2026 KER 1155), decided on 09-01-2026 by the Kerala High Court (Division Bench: Raja Vijayaraghavan V, J. & K. V. Jayakumar, J.).

The writ petitioner, claiming to be a devotee of Sree Valayanadu Devi Temple and an alumnus of Zamorin's Guruvayurappan College, challenged Ext. P6 order of the District Collector, Kozhikode, which (according to the pleadings) related to the grant/recognition of Malikhana—an allowance historically connected with the Zamorin of Calicut. The petitioner sought, inter alia, declarations that Malikhana stood abolished by the Constitution (Twenty-Sixth Amendment) Act, 1971; that respondent No.8 had no right to claim it; directions to conduct an enquiry into respondent No.8’s antecedents; and a writ of prohibition restraining respondent No.8 from exercising control over temples and educational institutions associated with the Zamorin’s Kovilakam.

The central questions were: (i) maintainability of the writ petition in light of Article 363 of the Constitution; (ii) the petitioner’s locus standi; and (iii) whether the requested public-law reliefs could be granted where the claim was asserted to arise from a pre-Constitution covenant/agreement.

2. Summary of the Judgment

  • The Court held the writ petition not maintainable due to the constitutional bar under Article 363, as the dispute concerned rights asserted to accrue from a pre-Constitution covenant/agreement.
  • The Court rejected the petitioner’s contention that Malikhana stood abolished by the Constitution (Twenty-sixth Amendment) Act, 1971, holding that the Amendment abolished only Privy Purse, and that Malikhana (as pleaded) operated on a distinct footing tied to covenant-based rights.
  • The Court held the petitioner had no locus standi, noting he was neither a family member nor a rival claimant and had not shown sufficient legal interest to challenge the allowance paid to members of the royal family.
  • The Court found no basis for issuing a writ of prohibition, reiterating it is an extraordinary remedy issued sparingly.
  • The writ petition was dismissed with costs of ₹10,000, payable to the High Court Mediation Centre.

3. Analysis

3.1 Precedents Cited

(a) Thirumala Tirupati Devasthanams And Another v. Thallappaka Ananthacharyulu And Others

The Court relied on this decision to explain the narrow and exceptional nature of a writ of prohibition. Quoting paragraph 14, it reiterated that prohibition is ordinarily issued only when an inferior court/tribunal acts: (a) without/excess of jurisdiction; (b) in violation of natural justice; (c) under an ultra vires law; or (d) in contravention of fundamental rights—while cautioning that writ jurisdiction cannot become “a cloak of an appeal in disguise”.

Influence on outcome: The petitioner’s request to restrain respondent No.8 from exercising “any right, control or authority” over temples/institutions lacked the jurisdictional predicates that justify prohibition. The Court treated the plea as an attempt to secure sweeping restraints without the strict conditions required for such extraordinary relief.

(b) Judgment in W.A. No.83/2024 (referred as Ext. R8(b))

The Court noted that in W.A. No.83/2024, this Court had earlier quashed communications denying enhancement and directed the Union of India to decide a representation for enhancement of “Malabar Malikhana compensation” after examining its nature and characteristics (pension/grant vs compensation for properties).

Influence on outcome: While not treated as res judicata on the petitioner’s claims, the reference reinforced two points: (i) the continuing administrative consideration/payment framework post-1971; and (ii) that the dispute’s gravamen is intertwined with the historical nature of Malikhana—an enquiry that the Court considered to fall within the terrain shielded by Article 363 when presented as a covenant-based right.

3.2 Legal Reasoning

(i) Article 363 as a jurisdictional bar

The Court extracted Article 363 and treated its non obstante clause as a decisive ouster of jurisdiction for disputes “arising out of” pre-Constitution treaties/agreements/covenants/engagements/sanads and similar instruments executed by rulers of Indian States where the Dominion of India or predecessor governments were parties, and which continued in operation.

On the pleadings, respondent No.8 asserted that Malikhana arose out of an agreement/covenant executed on 15.11.1806 between the East India Company and the Zamorin Raja. The petitioner, conversely, sought declarations negating any entitlement and asserted abolition by constitutional amendment.

The Court held that, given the nature of the asserted entitlement and the dispute’s foundation in a pre-Constitution instrument, Article 363 barred the writ court from adjudicating the claim.

(ii) Distinguishing “Privy Purse” from “Malikhana” for the 26th Amendment argument

The Court extracted the Constitution (Twenty-sixth Amendment) Act, 1971 and reasoned that:

  • The Amendment omitted Articles 291 and 362 and inserted Article 363A abolishing Privy Purse and extinguishing rights/liabilities/obligations “in respect of privy purse”.
  • Article 363 was retained in the Constitution, indicating continued constitutional recognition of the bar concerning disputes grounded in pre-Constitution instruments.

From this structure, the Court concluded that the 26th Amendment was not a general extinguishment of all historically-originating payments; rather, it was specifically targeted to Privy Purse. It therefore accepted the submission that Privy Purse and Malikhana are “distinct and separate claims” operating “in different spheres”, and rejected the petitioner’s claim that the 26th Amendment automatically abolished Malikhana.

(iii) Locus standi and the limits of public interest framing

Although the petitioner styled the matter as protecting sanctity/transparency of temple and educational administration, the Court treated the core reliefs as targeting the entitlement of the royal family/member to receive Malikhana and consequential authority claims. It emphasized:

  • The petitioner was not a member of the Zamorin family and did not claim any rival entitlement to Malikhana.
  • He failed to demonstrate “sufficient interest” in the subject matter—especially where the allowance was being paid (as pleaded) by the Union of India on covenant basis over a long period.

The judgment thus draws a line between generalized devotional/alumni interest and the kind of legal interest necessary to maintain a writ that in substance contests a specific historical entitlement and its recognition.

(iv) Non-joinder of the Union of India

The Court also noted that the petition was filed without arraying the Union of India, even though (on respondent No.8’s case and the documents relied upon) the allowance was paid by the Union and the Collector acted as a disbursement/notification authority. This omission supported the Court’s overall conclusion on maintainability and the unsuitability of the writ vehicle as framed.

3.3 Impact

  • Reaffirmation of Article 363’s practical force: The decision underscores that Article 363 is not merely historical text; it remains a live bar when courts are asked to pronounce upon entitlements that arise from pre-Constitution covenants/agreements involving erstwhile rulers.
  • Clarification on the 26th Amendment’s reach: The Court’s reasoning signals that litigants cannot assume that abolition of Privy Purse under Article 363A automatically extinguishes other payments/allowances; each claim’s legal source (privy purse vs covenant-based allowance) may be dispositive.
  • Stricter locus standi scrutiny in “temple/institution” wrap-around disputes: Where the real target is a person’s historical/heritage-based entitlement, courts may resist attempts to convert it into a broad public-interest dispute without demonstrated legal interest.
  • Prohibition remains exceptional: The Court’s use of Thirumala Tirupati Devasthanams And Another v. Thallappaka Ananthacharyulu And Others cautions against seeking blanket restraints through prohibition without meeting stringent jurisdictional prerequisites.

4. Complex Concepts Simplified

  • Article 363 (Bar to court jurisdiction): A constitutional provision that blocks courts from deciding disputes that arise out of certain pre-Constitution treaties/agreements/covenants involving rulers of Indian States and the Dominion/predecessor governments, where such instruments continued after the Constitution.
  • Privy Purse: A constitutionally-recognised payment historically made to former rulers after integration; it was abolished by the 26th Amendment through Article 363A.
  • Malikhana (as treated in this case): An allowance asserted to be payable based on an old covenant/agreement (here, stated as 1806). The Court treated it as not automatically identical to Privy Purse for 26th Amendment purposes.
  • Locus standi: The legal capacity to sue—i.e., the petitioner must show a sufficient legal interest in the dispute. Being a devotee/alumnus did not, by itself, confer standing to contest a covenant-based allowance entitlement.
  • Writ of prohibition: An extraordinary writ used to stop a court/tribunal from acting beyond its authority. It is issued only in exceptional situations and cannot be used as a substitute for appeal or to obtain wide injunctive-type reliefs without strict grounds.

5. Conclusion

SANOOP VV v. THE STATE OF KERALA is significant for reaffirming that Article 363 can decisively foreclose writ adjudication where the dispute is rooted in a pre-Constitution covenant/engagement involving erstwhile rulers, and for clarifying that the Constitution (Twenty-sixth Amendment) Act, 1971 abolishes Privy Purse but does not, without more, eliminate other covenant-anchored allowances such as Malikhana (as pleaded and evidenced in the record). The judgment also tightens the boundary of standing in challenges framed in the language of temple/educational institutional concerns but substantively aimed at hereditary/covenant-linked entitlements, and reiterates the strict discipline governing the issuance of writs of prohibition.