Harmony between Paramount Power and States.

36. In illustration of the proposition that the states have been adversely affected by the arbitrary action of the Paramount Power a considerable number of cases extending over more than a century have been laid before us by Sir Leslie Scott on behalf of the states which he represents, and in the replies of other states to our questionnaire. We are not asked, nor have we authority, to pass judgment in such cases, still less to grant a remedy. We have not heard, we have not thought it necessary to hear, the Paramount Power in regard to such cases. We are in no sense a judicial tribunal, nor can we exercise judicial functions.* That the Paramount Power has acted on the whole with consideration and forbearance towards the states, that many states owe their continued existence to its solicitude is undoubted and admitted. Few Governments at any time in history could look back on more than a century of action without some historical regret that certain things had been done and that certain things had not been done. Many of the grievances put forward by the states relate to times in which the administration of the states was very backward in comparison with what it is to-day. Some of the grievances have already been met by concessions on the part of the Paramount Power. One of the greatest of these, that the rights of the Princes have been given away during minority administrations, has been met by a Resolution of the Government of India in 1917. Without pressure on the states over railways India would not have the communications that it has to-day; without pressure the states would not have shown the progress that they do to-day. Taking a broad view of the relationship between the Paramount Power and the states, we hold that, thanks to good feeling and compromise on both sides, it has in the main been one of remarkable harmony

for the common weal.

Intervention by Paramount Power.

37. In the last ten years the Paramount Power has interfered actively in the administration of individual states in only eighteen cases. In nine of these interference was due to maladministration; in four to gross extravagance, or grave financial embarrassment. The remaining five cases were due to miscellaneous causes. In only three cases has the ruler been deprived of his powers. No bad record this considering the number of states and the length of time concerned ! We have heard comments from some of the Princes themselves that in certain of these cases intervention should have taken place sooner than was actually the case. This is a difficult matter for which rules of procedure cannot well provide. The decision when to intervene must be left, and experience has shown. that it can be safely left, to the discretion of the Viceroy of the day.

This was explained, from the beginning, vide paragraph 3 of the questionnaire (Appendix I).

II.—RELATIONSHIP

BETWEEN

THE PARAMOUNT

POWER AND THE STATES. MORE DETAILED

EXAMINATION.

Legal opinion of eminent counsel.

38. We will now consider the relationship between the Paramount Fower and the states in greater detail. In this we have the advantage of the opinion of eminent counsel on the legal and constitutional aspects of the questions raised by the terms of reference to us (Appendix III), an opinion placed before us by Sir Leslie Scott. With much of that opinion we find ourselves in agreement. We agree that the relationship of the states to the Paramount Power is a relationship to the Crown, that the treaties made with them are treaties made with the Crown, and that those treaties are of continuing and binding force as between the states which made them and the Crown. We agree that it is not correct to say that the treaties with the Native States must be read as a whole," a doctrine to which there are obvious objections in theory and in fact. There are only forty states with treaties, but the term in this context covers engagements and sanads. The treaties were made with individual states, and although in certain matters of imperial concern some sort of uniform procedure is necessary, cases affecting individual states should be considered with reference to those states individually, their treaty rights, their history and local circumstances and traditions, and the general necessities of the case as bearing upon them.

66

Criticism of legal opinion.

39. On the other hand we cannot agree with certain statements and arguments that occur in this opinion. The relationship of the Paramount Power with the states is not a merely contractual relationship, resting on treaties made more than a century ago. It is a living, growing relationship shaped by circumstances and policy, resting, as Professor Westlake has said, on a mixture of history, theory and modern fact. The novel theory of a paramountcy agreement, limited as in the legal opinion, is unsupported by evidence, is thoroughly undermined by the long list of grievances placed before us which admit a paramountcy extending beyond the sphere of any such agreement, and in any case can only rest upon the doctrine, which the learned authors of the opinion rightly condemn, that the treaties must be read as a whole. It is not in accordance with historical fact that when the Indian States came into contact with the British Power they were independent, each possessed of full sovereignty and of a status which a modern international lawyer would hold to be governed by the rules of international law. In fact, none of the states ever held international status. Nearly all of them were subordinate or tributary

to the Moghul empire, the Mahratta supremacy or the Sikh kingdom, and dependent on them. Some were rescued, others were created, by the British.

Validity of usage and sufferance.

40. We cannot agree that usage in itself is in any way sterile. Usage has shaped and developed the relationship between the Paramount Power and the states from the earliest times, almost in some cases, as already stated, from the date of the treaties themselves. Usage is recited as a source of jurisdiction in the preamble to the Foreign Jurisdiction Act, 1890 (53 and 54 Vict. C. 37) and is recognised in decisions of the Judicial Committee of the Privy Council. Usage and sufferance have operated in two main directions. In several cases, where no treaty, engagement or sanad exists, usage and sufferance have supplied its place in favour of the states. In all cases usage and sufferance have operated to determine questions on which the treaties, engagements and sanads are silent; they have been a constant factor in the interpretation of these treaties, engagements and sanads; and they have thus consolidated the position of the Crown as Paramount Power.

Pronouncement by Government of India, 1877.

41. These important effects of the operation of usage and sufferance were pointed out by the Government of India in 1877. "The paramount supremacy of the British Government," it was then said, is a thing of gradual growth; it has been established partly by conquest; partly by treaty; partly by usage; and for a proper understanding of the relations of the British Government to the Native States, regard must be had to the incidents of this de facto supremacy, as well as to treaties and charters in which reciprocal rights and obligations have been recorded, and the circumstances under which those documents were originally framed. In the life of states, as well as of individuals, documentary claims may be set aside by overt acts; and a uniform and long continued course of practice acquiesced in by the party against whom it tells, whether that party be the British Government or the Native State, must be held to exhibit the relations which in fact subsist between them."

Statements opposed to historical fact.

42. It is not in accordance with historical fact that paramountcy gives the Crown definite rights and imposes upon it definite duties in respect of certain matters only, viz., those relating to foreign affairs and external and internal security, unless those terms are made to cover all those acts which the Crown through its agents has considered necessary for imperial purposes, for the good

government of India as a whole, the good government of individual states, the suppression of barbarous practices, the saving of human life, and for dealing with cases in which rulers have proved unfit for their position. It is not in accordance with historical fact to say that the term "subordinate co-operation" used in many of the treaties is concerned solely with military matters. The term has been used consistently for more than a century in regard to political relations. In these and other respects the opinion of counsel appears to us to ignore a long chapter of historical experience.

Relationship between Paramount Power and States.

43. What then is the correct view of the relationship between the states and the Paramount Power? It is generally agreed that the states are sui generis, that there is no parallel to their position in history, that they are governed by a body of convention and usage not quite like anything in the world. They fall outside both international and ordinary municipal law, but they are governed by rules which form a very special part of the constitutional law of the Empire. Some sixty years ago Sir Henry Maine regarded their status as quasi-international. Professor Westlake regarded the rules which regulate their status as part of the constitutional law of the Empire.* A similar view was expressed by Sir Frederick Pollock, who held that in cases of doubtful interpretation the analogy of international law might be found useful and persuasive.t

Sir Henry Maine on sovereignty.

44. In a well known passage in his minute in the Kathiawar case (1864) Sir Henry Maine refers to the relationship of divided. sovereignty between the Paramount Power and the States. "Sovereignty," he wrote, " is a term which, in international law, indicates a well ascertained assemblage of separate powers or privileges. The rights which form part of the aggregate are specifically named by the publicists who distinguish them as the right to make war and peace, the right to administer civil and criminal justice, the right to legislate and so forth. A sovereign who possesses the whole of this aggregate of rights is called an independent sovereign; but there is not, nor has there ever been, anything in international law to prevent some of those rights being lodged with one possessor, and scme with another. Sovereignty has always been regarded as divisible. It may perhaps be worth observing that according to the more precise language

"The Native States of India," Law Quarterly Review, Volume XXVI. + Law Quarterly Review, XXVII, 88-9.

of modern publicists, sovereignty is divisible, but independence is not. Although the expression partial independence may be popularly used, it is technically incorrect. Accordingly there may be found in India every shade and variety of sovereignty, but there is only one independent sovereign-the British Government."

Activities of Paramount Power.

45. We are concerned with the relationship between the Paramount Power and the states as it exists to-day, the product of change and growth. It depends, as we have already said, upon treaties, engagements and sanads supplemented by usage and sufferance and by decisions of the Government of India and the Secretary of State embodied in political practice. As a general proposition, and by way of illustration rather than of definition, the activities of the Paramount Power may be considered under three main heads: (1) external affairs; (2) defence and protection; (3) intervention.

External affairs.

They

46. The Indian States have no international life. cannot make peace or war or negotiate or communicate with foreign states. This right of the Paramount Power to represent the states in international affairs, which has been recognised by the Legislature, depends partly on treaties, but to a greater extent on usage. That this right of the Paramount Power to represent the states in international affairs carries with. it the duty of protecting the subjects of those states while residing or travelling abroad, is also recognised by the Legislature. For international purposes state territory is in the same position as British territory, and state subjects are in the same position as British subjects. The rights and duties thus assumed by the Paramount Power carry with them other consequential rights and duties. Foreign states will hold the Paramount Power responsible if an international obligation is broken by an Indian State. Therefore the Princes co-operate with the Paramount Power to give effect to the international obligations entered into by the Paramount Power. For instance, they surrender foreigners in accordance with. the extradition treaties entered into by the Paramount Power;

That these decisions are authoritative has been laid down by the Judicial Committee of the Privy Council. In Hemchand Devchand v. Azam Sakarlal Chhotamlal the Privy Council said "On the other hand, there are the repeated declarations of the Court of Directors and of the Secretary of State that Kathiawar is not within the Dominions of the Crown. Those declarations were no mere expressions of opinion. They were rulings of those who were for the time being entitled to speak on behalf of the sovereign power, and rulings intended to govern the action of the authorities in India" [1906] A C at page 237.

† 39-40 Vict. c. 46. Preamble.