Freedom Files: HUNTER AND THE QUARRY
As the Congress pressed the Princely States to bring in democratic reforms in order to usher in self-governance, the wily Rulers continued to stall offering lip service instead of action

As the hunter chased the prey relentlessly, trying to ensnare him, there was a distinct feeling of discomfort. For the stone in the shoe while running was hurting the hunter. The stone went by the metaphor of the Indian Princes and they were collective with a lot of heft. Rumor it is said has a thousand tongues and the bigger Princes were the masters of subterfuge and deceit as they kept escaping the dragnet of the hunter, in this case the Indian National Congress front run by charismatic Jawaharlal Nehru who abhorred them with all the distaste at his command. His thinking was predicated on bringing the Princes to heel so that the populace living in acute serfdom and penury could live in habitable conditions. Reform was the tip of the spear that he wanted to use to purge the Princely States of all their excesses. In the sphere of constitutional advancement, the States were very much behind the times and though some of the Princes had introduced certain reforms in their States yet almost all of them had made no basic change either in the form of government or in the position of the Ruler with the exception of Aundh (which was highlighted last week in these columns), no State constitution contemplated any change in the prevailing polity of the state in terms of self government. As India celebrates yet another Independence Day, it is best to remember how the walls surrounding these States came down and the integration of people took place as the vile and pious piranha who ruled these states through Treaties and the doctrine of Paramountcy crumbled under the onslaught of democratic forces.

FRANCHISE

In almost all the states where constitutional reforms had been introduced a very small percentage of the population had been franchised. Aundh was the only State where universal adult franchise had been introduced. The remaining had only a very small percentage of the population enfranchised and made eligible either for the membership of the Legislature or for voting at the election.

Franchise was regulated on the basis of property, income, income-tax, value of immovable property and education. In Baroda qualification for an elector was: land assessed at Rs 30/- or more; income which could be taxed; immovable property valued at Rs1,000 or more or education up to at least Matriculation.

In Rajkot, franchise was granted to those who had completed 21 years; had three years residence in the State; had property worth Rs.1,000 or more; or were holding not less than one Santi of cultivable land or were paying annual Ubhad Vero not less than Rs.2.

In the case of Jaipur, the qualifications for the membership of the Legislature were: Six months residential qualification; 25 years of age, or a graduate of five years standing, for the Council or a matriculate for the Assembly. The qualification for a year were: For the Council – if he pays an annual rent of Rs.50; possessed property worth at least Rs.600; possessed local titles and 20 bighas of Chahi or 80 bighas of Barani land; or had passed the matriculation examination: For the Assembly – Pays Rs.25 as rent per annum, possessed a house of the value of Rs.300; possessed local titles and 10 Bighas of Chahi or 40 Bighas of Barani land; or had passed the Vernacular Middle examination.

In the case of Mysore and Gwalior franchise for the Upper House had been considerably lowered. In Gwalior only 20 per cent of the population had been enfranchised for the purpose of election to the Praja Sabha.

FUNDAMENTAL RIGHTS OF THE PEOPLE

Almost all the constitutions of the States were silent on this point. Fundamental rights of the people were nowhere defined or guaranteed constitutionally. Aundh was the only State, which guaranteed through the constitution the fundamental rights of the people. The constitution of Aundh guaranteed to every citizen “subject to the principle of non-violence and public morality… Freedom of person, freedom of speech, liberty of the Press, freedom of assembly and discussion, freedom of worship, freedom from all political disabilities arising from birth, sex, caste, religion and colour or material standing, universal, free, compulsory basic education and the right to work at a minimum living wage.”

The constitution of Gwalior and Hyderabad also made some references to the granting of certain fundamental rights and civil liberties of the people. But these liberties were always held subject to the limitations and duties laid down by law for the maintenance of peace and order. It was this last clause which when interpreted by irresponsible governments and their officers circumscribed the sphere of civil liberties, which were promised within “legitimate bounds”.

POSITION OF THE RULER

Position, power and prerogatives of the Ruler were nowhere clearly defined or limited. Aundh, was again perhaps the solitary instance of an Indian State where a definite change was stipulated in the position, power and prerogatives of the Ruler.

The Aundh constitution laid down that the Raja of Aundh was to be “the first servant and conscience bearer of the people”. Transferring the State Government into the hands of the popular and responsible ministry, and reserving to himself only “the relations with Paramount Power and other States”. Regarding legislation the Ruler of Aundh enjoyed only a suspensive veto like the king of England and his privy purse, which was limited to 1/10th of the State revenue, was also subjected to the veto of the Legislature.

In sharp contrast to this was the position of the Rulers of other States. Cochin, which was the first Indian State to introduce diarchy had got the position of the Ruler defined by the constitution which clearly stated that “though the administration of these departments would be normally carried on in accordance with the advice of the “Ministers”, it was necessary that the Maharaja’s prerogative should be preserved un-impaired”. The Rajkot scheme went a step further and laid down that the powers conferred upon the people were “subject to the absolute vetoing powers of the Ruler and his discretion. The Govt. of Baroda Constitution Act of 1940, reiterated the position still further. It stated that “notwithstanding anything contained in this or any other Act, all powers, legislative, executive and judicial, in relation to the state and its government are hereby declared to be and to have always been inherent in and possessed and retained by His Highness and nothing contained in this or any other Act shall affect or be deemed to have affected the right and prerogative of His Highness to make laws, by virtue of his inherent authority”.

In Hyderabad, however, a peculiar theory of Kingship had been developed in the Constitutional Reforms of the State. The Hyderabad reforms stated: “The head of the State represents the people directly in his own person, and his connection with them, therefore, is more natural and abiding than that of any passing elected representatives. He is both the supreme head of the State and embodiment of the “peoples Sovereignty”. Hence it is that, in such polity, the Head of the State not merely retains the power to confirm or veto any piece of legislation, but also enjoyed a special prerogative to make or unmake his executive or change the machinery of government through which he met the growing needs of his people. Such a Sovereignty formed the basis on which our constitution rested, and has to be preserved.

Other states also stated their position more or less on similar lines.

As such, it was obvious that no attempt had been made to transform the Indian Prince into a constitutional monarch. The theory of kingship advocated by the ruler of Hyderabad was reactionary in the extreme and if it had been accepted it would have made it impossible for ever to introduce any form of democratic government in the State. This theory was hardly in consonance with theory of the peoples’ political sovereignty exercised through a Parliament. It was more in consonance with the metaphysical theory of Legal, according to which the King is only an external symbol of a self-conscious ethical substance the State. It was also in line with the Fascist and Nazi conception of leadership, with this difference that the Duce (Mussolini) and Fuehrer (Hitler) were supposed to be elected at some stage.

EXECUTIVE

The executive under these reforms continued to be irresponsible and irremovable. The ministers in almost all cases were to be appointed by the Ruler himself. Though a few States like Cochin, Mysore, Kashmir and Gwalior had one or two ministers nominated from out of the elected members of the legislatures, yet all of them held office within the pleasure of the Ruler and had no responsibility to the legislature. The executives in these “reformed States” were thus as irresponsible as were in the rest of them and the legislatures whereever they existed had no control over the executives.

The Rajkot scheme contemplated the appointment of two of the State Ministers from among the elected members of the Sabha. They could be removed “on a vote of no-confidence by a three-quarters majority of the Sabha or when it appeared to the Ruler expedient to remove in public interest”. The three-quarters majority of the legislature, one third of which was nominated and 2/3rd elected on the basis of communal electorates, meaning that the ministers could be kept in power even against the wishes of the majority of the elected representatives of the people.

In Cochin one of the ministers was to be appointed from among the elected members of the legislature. Nothing was mentioned about his responsibility to the legislature but he needed to carry on his duties in consonance with the wishes of the ruler and the Dewan.

The Baroda Act contemplated the appointment of a minister from among the “non-official” members of the Dhara Sabha. It was, however, not made necessary that he should be an elected representative of the people.

The Gwalior Proclamation expressed a hope that “In course of time and in the light of experience gained or acquired it may be possible to select one minister from among the members of the Praja Sabha. Again there was no expressed intention to appoint the minister from among the elected representatives of the legislature.

The Mysore scheme provided for the appointment of at least two ministers from among the elected members of the legislature but expressly declared the irresponsibility of either the nominated minister of the whole executive to the legislature. The Mysore reforms committee’s report categorically stated that diarchy was unsatisfactory and complete responsibility was an impossibility at that stage.

The system of diarchy, thus introduced in the States had obviously inherent defects and had no future. Even in the transferred subjects, the minister, often referred to as the “popular Minister”, had no full authority much less was he responsible to or removable by the legislature. The Cabinet crisis in Kashmir revealed in a remarkable manner, the inherent weakness of the system apart from its other defects arising from the conditions and handicaps imposed on the “popular ministers.” Mirza Afzal Beg, the popular minister, soon discovered that he could really do no good to his people. Apart, from the limited powers transferred to him he also found that many important and vital decisions of State were taken by the Council or the Prime Minister, without his consent and sometimes without his knowledge.

In sharp contrast to the composition and method of appointment of the executive in the States was the provision made in Aundh Constitution. It laid further restriction on the Ruler and made it imperative for him to appoint only those ministers who possessed the confidence of the State Legislature; their tenure of office, however, being made dependent to their enjoying the confidence of the legislature.

LEGISLATURE

Most of the legislature instituted under the reform schemes were of the Pre-Montford (Montagu and Chelmsford) British Indian Variety. They all contained important nominated and official elements. The proportion of nominated to the elected members varied from State to State and it ranged between 33 and 50 per cent. The following table makes clear:

Most of the State Legislatures were unicameral. Possibly their size was too small for bi-cameral legislatures. But that would hardly make any difference; for so long as the final power for making laws rested in the hands of the Ruler himself the question of unicameral versus bicameral legislature should not assume any serious importance. Even in Gwalior and Mysore where there were bicameral legislatures, the lower House was not strictly a law making body. Its function was consultative and it could ventilate grievance and put forth the views of the people.

The system of representation in most of the States was direct except in the case of Aundh and Seraikella. In Aundh election to the Central legislature was indirect through the village Panchayat and Taluka Samities. In general, in almost all the States, the system of election was direct and members were elected by territorial constituencies representing particular interests or elements. Some like Mysore, Kashmir and Rajkot etc. had introduced separate communal electorates for Muslim and other minorities.

Hyderabad had, however, adopted a unique method of representation in the Legislature. It had discarded general territorial constituencies and had extended representation to special interests both economic and communal. This system was most objectionable and led to the over weighing of the legislature with vested interests. And when it was further reinforced by communal representation it made the legislature both reactionary and anti-national. It is needless to comment any further on the Hyderabad system of representation: it was obviously intended to prevent the growth of political parties on a territorial basis and was meant to serve communal ends. The new reforms introduced in Travancore, established a bicameral legislature – the Lower House to be constituted on the basis of territorial Constituencies and the Upper House on the basis of Functional and Vocational representative both the Houses were to possess equal powers.

The power of the legislature under the new reform schemes were very much limited. There was no real transfer of power to the Legislature, which were mostly consultative bodies with at best right of discussion.

In Mysore Bills could not originate in the Lower House though it was ordinarily consulted on all general principles underlying measures introduced in the Upper House. Opinion of the Lower House supported by the 2/3rd majority could not be ordinarily disregarded; but if the Government decided to ignore the opinion of the House it could make a public statement giving the reason for sitting aside the opinion of the House. The Gwalior Lower House had the right to initiate the legislation but the Upper House was the real law making body. “Legislation initiated in the Samant Sabha will become law if assented by-to and in the form assented to by the Ruler. It was obviously not necessary to obtain the sanction of the Praja Sabha. In Travancore both the Houses of Legislature possessed equal powers and no legislation or even ordinary business could be got through unless both the Chambers had concurred. This was the inherent defect of the Travancore Constitution and it became all the more grave when one considers the composition of the Upper House which was to represent the vested and group interests. The vetoing power of the Executive only completed the constitutional structure of Travancore which looked something like a well calculated fraud. Aundh was once again, the only state where legislature had been made the supreme authority in the State; the Ruler having a suspensive veto only.

Self governance and democracy was a chimera as Rulers were loath to reform, yet the intensity of the pressure meant that lip service needed to be offered, but under the tutelage of their British masters, all sorts of checks and balances were instituted. The Resident in consonance with the well entrenched wily and cunning Prime Ministers or Dewans acted in cohesion and unison to ensure that no forward movement took place on this front. They were well aware that the INC was going to keep pushing and that as the freedom movement became all pervasive, the populace that they had sequestered and subjugated would rise against their tyranny. Princely States and 100 million Indians could not remain outside the ambit of a free and united India.

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Columnist: 
Sandeep Bamzai