Freedom Files: A Change of Circumstances
The Indian Princely Order never thought that it would ever see a sunset, but even as they functioned as a moat for British rulers, they were slowly being consigned to the dustbin of history by their masters

Reflective men don’t understand the realities of life nor its vagaries. Regret after all is unprofessional — it burns and scalds and leaves deep scars, even as grief transcends everything else. Holding onto the past is akin to lifting heavy lumber. Once faced with new realities, you have to move on for nurturing grudges makes you think that revenge is the only answer, but it cannot be a straight line. The remedy, thus, is to leap over in a single bound and prepare for all eventualities.

The Indian Princely Order never ever thought that it would see a sunset, an end to the feudal order, which was dynastic and capricious. Even as lab rats are cognitive, the Princes suffered from cognitive dissonance. From losses in the normal course, one can draw and elicit great wisdom, but with the Princes this wasn't the case. Though they didn’t resort to a Nero Decree type of scenario, they did make life as difficult as possible for the Indian National Congress in its pursuit for democratisation through sweeping reforms. Even before that, they were virtually bush-whacked by the conniving British with what they thought was an egregious mistake on the part of the British Rulers. So, even as they functioned as a moat for the British ruling establishment through the linkages with Paramountcy, they were being consigned to the ashes of history. It was as if a collective putsch had been conducted against the Indian Princes who had stood by the British all this while (including during the Great Mutiny of 1857), a palace coup of epic proportions. The reaction was equally stunning for the psyches of the Princely Order had been brutalised in one fell swoop. And they reacted with all their guile.

The ‘en bloc’ resignation of the members of the Standing Committee of the Chamber of Princes in December, 1944, presumably as an indication of their protest against the developments in the policy of the Paramount Power towards the Indian States, pointedly brought to the notice of the Princes of India the exact implications and effect of the new interpretation put forth by the Crown Representative upon the Doctrine of Paramountcy. In a communiqué  dated December 2,1944 from the Political Department to the Chancellor of the Chamber of Princes, the Crown Representative stated that: “The Indian Princes may rest assured that the fulfillment of the fundamental obligations of their Treaties and Sanads remain an integral part of  His Majesty’s Government and policy…I should of course add what your Highness already well knows, that the interpretation of the text of the relevant Treaties has long been affected by usage and sufferance and has in the nature of things to be related to the interests of the changing times.” The last sentence in this passage whittled down the assurance contained in the first sentence, really and truly, this was an attempt to apply to the Treaties, Sanads and Engagements the doctrine of the change of circumstances known as ‘rebus sic stantibus; i.e.” “everything is understood to apply only so long as the circumstances contemplated by it continue to exist.” It was no use disguising the fact that recent developments of the time in the policy of the Crown Representative towards the States, was influenced and dictated by this doctrine.

The first stage of the application of this doctrine was the introduction of the Scheme of Attachment by Executive Orders of the Crown Representative in 1943, by which the small states in Western India and Gujarat States Agencies, which were included in the definition of “Indian State” in Section 311 of the Government of India Act, 1935, were attached to larger States for securing modern amenities of life such as education, sanitation medical relief, roads, etc., to the subjects of the Attached States. When the Scheme of Attachment was declared illegal by the Court of the Judicial Commissioner, Parliament legalized the Scheme of Attachment by enacting the India (Attachment of States) Act, 1944. Till its enactment, it was well accepted that Parliament had no power to legislate for the States. This basic fact had been recognized and given effect to in the Government of India Act, 1935, whose provisions as regards to the accession of the States to the Federation were only permissive. This basic principle, which was acted upon by the Paramount Power in its relationship with the States, was for the first time departed from and this departure was very significant, and it afforded a fore-taste of what is coming in the near future. The far-reaching monetary, financial, economic and industrial measures, which were adopted by the Government of India under the pressure of War, without any reference to the States, but which were vitally affecting the interests of the States and the welfare of their subjects, also reflected the trend of the policy towards the Indian States.

In many ways, this was the precursor to what Sardar Patel and V P Menon went onto achieve through amalgamation of smaller Princely States with larger States after Independence. But this was being done by the British with a different intent. And I will explain why.  By Executive Orders of His Excellency the Crown Representative certain small States in Western India and Gujarat States Agencies, were without the consent of the Rulers of these States, attached to certain larger States and there upon the jurisdiction, which was exercised in these States by the British Agency Courts under the foreign Jurisdiction Orders in Council, was transferred to the courts of the Attaching States, and the functions of the Crown Representative in relation to these States, which were directly exercised by the Crown Representative through his officers, were also transferred to the Special Officers of the Attaching States, and thereby created an intermediate suzerainty between the Attached States and the Paramount Power. This whole Scheme of Attachment was declared illegal and ‘ultra vires’ of the powers of the Crown Representative by the Court of the Judicial Commissioner, mainly on the ground that it transferred a substantial position of Paramountcy to the officers of the Attaching States which was not competent under the Government of India Act, 1935, and under the foreign Jurisdiction Orders in Council, that it was inconsistent with the basic principle of direct relationship between the States and the Crown and that it was reversal of the well settled and accepted policy of Parliament towards the States. The Princes were appalled; they could not understand why they were being stampeded. It became extremely sensitive and contentious.

 To legalise the Scheme of Attachment and the transfer of jurisdiction of India (Attachment of States) Bill, 1944, was hurriedly rushed through both the Houses of Parliament. Parliament was persuaded by Leo Amery, the Secretary of State for India, to pass the said Bill on a representation which was not borne out by the facts. It was pertinent to note the grounds, arguments and considerations, which were urged by the Secretary of State for India, the Under-Secretary of State for India and the Attorney-General for the passing of the Bill. It was enough to set out some of the statements. During the course of debate in the House of Lords on this Bill the Earl of Munster, Under-Secretary of State for India Geoffrey Fitzclarence stated : - “The Bill as it is provided takes nothing away from the Taluqdars which they have possessed in the past; it maintains all the rights which they have held by agreement or by usage”.

Lord William Hailey stated : “We now propose to hand over to the neighbouring major States the jurisdiction which we formally exercised under the foreign Jurisdiction Act; but at the same time to place those major States under the obligation to supply these areas with the social services and the like which we ourselves have been unable to extend to them”. (Parliamentary Debates – Lords Vol : 130).

In the House of Commons in the course of the debate on the Bill the Attorney-General stated: “The real problem which this scheme is designed to meet and solve is that, in these areas at present there is really no effective civil administration at all. That is to say, there is no effective administration for health, services, education or any communication because being recognized as independent units and being so small they cannot provide these things for themselves and nobody else has provided or can provide these things for them”.

Leo Amery, the Secretary of State for India, stated- “The position of the States remains entirely unaffected in this respect, that these Taluqdars are going to retain every element of sovereignty which in these States they have enjoyed hitherto. Their subjects will continue to be subjects of those States. They have never been British subjects; they are not going to be British subjects or become subjects of any other states… All I would say in further correction of the misrepresentation is that, the machinery of Attachment means that a Special Officer delegated from the State to which the Taluqa is attached, will carry out the provisions of an Instrument of Attachment which makes arrangement for seeing that health, sanitation, road and other services are applied within the Taluqa for the benefit of the inhabitants. In return there will be a contribution of 10 per cent, of the revenue of the Talqa. The whole of the services will be provided out of the facilities which neighbouring States enjoy and out of their revenues which are much larger than those which the Taluqdars themselves have……the Taluqdars’ position remains unaffected.”……. (Parliamentary Debate – Commons – Vol. 398)

The Indian (Attachment of States) Act, 1944, provided ‘inter alia’ that any Indian State mentioned therein may be attached to any other Indian State and in connection with the Attachment provisions may be made for (a) the exercise by, or transfer of Courts and Officers of the last mentioned Indian State…..any powers or jurisdiction in or in relation to the first mentioned Indian State which were or could have been exercised by or on behalf of the Crown before the attachment; (b) the relinquishment as a consequence of the attachment, of any such powers or jurisdiction of the Crown as aforesaid.

Notifications were issued by the Crown Representative attaching certain States and transferring all civil and criminal cases arising from attached States and pending in the Agency Courts to the Courts of the Attaching States, and those Notifications were validated by the India (Attachment of States) Act, 1944. A communiqué was issued in April 1943 explaining the objects of the Scheme of Attachment. Thereafter the Rulers of the Attaching States directly issued Instruments of Attachment to the Rulers of the Attached States in a standard form. It was enough to set out the important clauses of an Instrument of Attachment issued by a Ruler of the Attaching State: “Whereas with the approval of His Excellency the Crown Representative it has been agreed that direct relations between the Ruler of the (Attaching) State and Your Taluka should be established, I issue this Instrument in perpetuity for yourself, your heirs and successors confirming, subject in the event of my, my heirs and successors acceding to the Federation, to the operation from time to time, read with the Provisions of the Government of  India Act, 1935, as amended from time to time read with the Provisions of the Instrument of Accession, executed by me , my heirs and successors; the specific rights exercised by you as referred to in article 3 below.

“The specific powers and privileges enjoyed by you are set forth in Schedule 1 appended to this instrument.

“5 (b). The guarantee for retention of the powers enumerated in the Schedule will be subject to the general review after a period of seven years reckoned from the date of the execution of this Instrument. This review will be conducted by an officer of the Crown Representative’s Department, who will recommend any modification, curtailment or extinction that he may consider in the interest of the welfare of the people of your Taluqa. This Officers’ recommendations will be submitted to the Resident for the States of Western India for decision, but either my State or you will have the right of appeal from the Resident’s decision to the Crown Representative.

“11(3) for meeting the cost of the general administration of your Taluka a charge will be levied from you on the same scale and on the same system as it is levied at present. This levy will not exceed 10 per cent of your gross revenues and will not be increased without your consent unless the Resident for the States of Western India has decided that an increase is necessary.

“The subjects of your Taluka will be allowed the benefit of secondary and technical education and medical treatment in the hospitals and dispensaries of my State. They will also be afforded the protection and privileges enjoyed by the subjects of my State in all matters affecting foreign relations and recruitment to the State Services.

“In the event of my, my heirs and successors acceding to the Federation of India, the accession of my State will if the relations of my State and your Taluka are adjusted as proposed, in accordance with His Majesty’s recognition of what constitutes my State include your Taluka.”

The Instrument of Attachment recited that it was issued by the Ruler of the Attaching State in perpetuity to the Ruler of the Attached State. It was very difficult to reconcile this recital with clause 5(b) of the Instrument of Attachment, which provided that “the  guarantee for retention of the powers enumerated in the Schedule was subject to the general review after a period of seven years by an officer of the Crown Representative’s Department, who would recommend any modification, curtailment or extinction that he may consider necessary in the interest of the welfare of the people of the attached Taluka”. This provision negatives the statement by the Secretary of State for India and the Attorney-General during the debate on the Bill when they stated: “By the Bill the Talukdars are entirely unaffected and that their rights and their existence under their engagements were not in any way affected or touched by the Attached Scheme”. This provision clearly envisaged the extinction of all the rights of the Ruler of the Attached State, thus wiping out the integrity and existence of the Attached State as a separate political entity. This provision read with clause 17 of the Instrument of Attachment made it clear that in the future of polity of India if the Attaching State becomes a member of the Indian Federation, the Attached State is to be deemed to be included in the Attaching State, and that there will be no separate existence of the Attached State in the Indian Polity and the Ruler of the Attached State and his subjects will have no representation in the Federal Legislature.

In the Government of Indian Act, 1935, the attached States were recognized as separate political units and were collectively given five seats in the Federal Assembly and two seats in the Council of State. It was clear that this representation given to these States would no more be available, whether the Attached States were or were not entirely eliminated after seven years. Thus the important rights of the Ruler of the Attached State were taken away by indirect method. In effect the Scheme of Attachment was the first step towards the complete elimination or extinction of the Attached States. In view of this it was difficult to give any meaning to the recital which stated that the Instrument of Attachment was issued in perpetuity. In the debate on the Bill, the Secretary of State for India stated : “It has always been a great source of pride to this country that our treaties with Indian States, small and great have been observed. There is no breach of that observance at all in these arrangements”. In view of the envisaged extinction of the rights of the Ruler of the Attached State at the end of seven years, it was difficult to accept the official view.

Primarily because the system as it existed was being subverted. Operation Fightback was initiated as the furious Princes who were fearful of being attached struck out. Their tack was simple: use the British legalese to trump them. For over hundred years, it was well accepted that in the exercise of Paramountcy or otherwise, the Crown had no power to extinguish the status and powers of a State. They went on to trash the attachment scheme describing it as incompetent. The virulent opposition shown to the Scheme of Attachment and to the India Attachment of States Bill led to the Amendment of the Bill which restricted its operation only to those States which were in the Western India States Agency and Gujarat States Agency on August 25, 1943. The original Bill had applied to all States which were not mentioned in Division 1 to XVI of the Table of Seats appended to Part II of the First Schedule to the Govt of India Act 1935. In other words, it comprised all small states in different parts of India. By the amendment some of these states were excluded. Their take that the Bill was hurried and rushed through Parliament worked and within a fortnight the whole view was altered, such was the tenacity of holding on to power from the Princely Order. It was thought not only expedient but desirable not to apply the Bill to all the states which were originally included, but only to those states which were actually attached.

Their anger being predicated on the fact that the invocation of the doctrine of rebus sic stantibus i.e. change of circumstances was dangerous. British India was obviously on the perilous path of complete self government and the Princes were loath to accept it. Though the British tried and failed to bring them to heel, it was the trinity of Nehru, Mountbatten and Patel which systematically broke their back and dismantled their enterprise. Pressure tactics worked with the British using the front of the Chamber of Princes, but it failed under the onslaught of the Indian National Congress later which brooked no nonsense from them. The Princes fought and fought long and hard for they believed that their rights, privileges and status had to be safeguarded at all costs. After all, the very title of this damning Act was - An Act to render legal attachment of certain Indian States to other Indian States. Moreover, the Princes believed that Parliament did not legislate to bind foreigners in foreign territories.

Contesting this with the plea citing the Butler Committee Report - On Paramountcy and Paramountcy alone can the States rely for their preservation during the generations that are to come.  Through Paramountcy is pushed aside the danger of destruction or annexation. So, in conclusion, they reckoned that in attaching these states, Paramountcy had utilised Paramountcy to defeat the very object for which Paramountcy existed. For Paramountcy must remain paramount. A substantive counter narrative which won them this round.

@sandeep_bamzai

Columnist: 
Sandeep Bamzai