BY N. D. VARADACHARIAR

If objections of a technical nature are raised against some of the provisions of the White Paper, it must not be considered mere pedantry. Federalism is based on law; and a federal constitution, being an instrument in writing liable to judicial interpretation as a statute, should avoid errors which make for vagueness or ambiguity of any kind. Particular care should be taken not to use devices or words in the Constitution which may defeat the intention of the framers, that this should be the first onward step in India’s march towards Dominion Status. No usage or constitutional convention which conflicts with the terms of the Constitution could grow; so that the defenders of the White Paper cannot be heard to say that if any provision is shown to be wrong, it could be put right in actual practice. There is at least one objection to the proposal as to the manner of bringing the new All-India Federation into existence which seems to me to have the effect of negativing the primary purpose of the Constitution.

I refer to the Instruments of Accession by means of which the Indian States are sought to be taken into the All-India Federation. Very little attention has been given to this matter in the long evidence of Sir Samuel Hoare before the Joint Select Committee; nor has Sir Tej Bahadur Sapru adverted to it in his Memorandum. I do not know if there is any elucidation of it in the other evidence before the Committee whose full Report I have not yet seen.¹

The proposal is that the All-India Federation should be brought about, (i) as regards the British Indian Provinces, by an Act of Parliament providing for the accession of the Provinces individually and British India as whole to the Federation, and (ii) as regards each Indian State, by a separate Treaty of Accession between it and the Crown in its English right, whereby the State would transfer to the Crown certain powers and jurisdictions for exercise by the federal authorities. The formal inauguration of the Federation is to be by a Royal Proclamation. The States strenuously object to the authority of an Act of Parliament over them, while they appear to have no such objection to a Royal Proclamation. The reason is that they acknowledge the suzerainty of the Crown and they seem to think that it is no derogation of their sovereignty to place themselves under the Executive jurisdiction of the Crown.

It is unnecessary to dilate upon this curious interpretation of the status of the Indian States except to point out that in constitutional law, it makes no difference in substance whether it is Parliament by an Act, or the Crown by a Proclamation under the Great Seal that originates and assumes authority over the Federation. A Royal Proclamation is the act of the Executive of England which is under an ever-present responsibility to Parliament.² If the Indian States imagine that they are escaping Parliamentary sovereignty by having recourse to the expedient of a Proclamation they are sadly mistaken. No public act of the Crown of England can be a personal act thereof. A well-known authority points out, ‘In fact there now remains no department of public business in which the King is free to act at his own discretion. He has ceased to possess the substance of power and has become much more of a confidential adviser to successive administrations. Indeed when we speak of the King, or–as we usually do when we desire to emphasise the impersonal character of the Royal Office–of the Crown, we usually mean the Government of the day.’ ³ The ‘Government of the day’ referred to is the British Cabinet except when it relates to the Self-Governing Dominions to which the Statute of Westminster applies. In every Dominion, the Government is the King acting with the Dominion Ministers. This distinction is of the utmost importance. But both the White Paper and the Princes agree that now and for all time the Crown should mean the King acting with his British Executive in all matters pertaining to the Treaties of Accession.

So far as the British Indian Provinces are concerned, they are legally bound by an Act of Parliament, and their transfer from the present organisation of the State into a new State such as the Sankey Reports contemplate, will be complete when a Parliamentary Act declares such a result. Whether it is proper or even legal to alter the nature of the State so radically as to destroy and replace it by a wholly new organisation without formal authority from the people who compose the State and are affected by the change; whether the consent of the Round Table Delegates, so far as it went, was sufficient formal authority in this behalf; are politico-legal questions, and as a matter of fact can only be determined by the party enjoying the superior sanction. And since Parliament possesses this sanction, it could drive the dumb provinces into the federal fold without let or hindrance.

In fact the Indian States are much in the same position, although it suits Parliament to give the matter a somewhat different colour. The Indian State claims that it enjoys a certain amount of sovereignty which places it outside the jurisdiction of Parliament. This sovereignty it insists upon retaining even after it has entered into the Federation. Two questions fall to be considered in respect of this claim. In the first place, is such a claim compatible with federalism? Secondly, do the States possess any substantial powers which, by any interpretation of the term, can be approximated to Sovereignty as jurists and political scientists understand it?

It is here that the distinction between a federal and a confederal relation of States becomes important. I should weary my readers if I were to repeat all the details of the distinction between Bundestaat and Staatenbund. The one distinction which is relevant to this inquiry is that a confederation maintains the nationality and independent sovereignty of the member-states intact, while a federal polity effects a merger of the members so as to constitute one nationality and a single unified sovereignty. ⁴ It has been occasionally rather loosely said that in a federal constitution, there is a division of sovereignty between the national and the state governments. What is in fact divide is not sovereignty, which vests in the entire people of the Federation acting together. The actual powers of government are alone divided between the national and the state authorities, and these are exercised in strict conformity with the constitution, which being the expression of the sovereign will of the people as a whole, is superior to and transcends them all. The distinction between the right of sovereignty in the people and the powers of Government in the actual day-to-day conduct of the administration is important.⁵ So that when the Indian States enter the All-India Federation, their citizens acquire the federal nationality, and their sovereignty such as might have existed becomes merged in the authority which is sovereign as regards the entire Federation. There is no way of recognising and perpetuating the separate sovereignty of component States in a federal constitution. The Indian States will not understand this; and apart from them, some interests are served by their illusion being kept up.

Secondly, do the States possess sovereignty at all in any sense?" Sovereignty consists of actual independence of any alien superior, ⁶ and even more of recognition as sovereign by other International Persons.⁷ Not one state, including Hyderabad, satisfies the usual tests of a sovereign power. After its entry into the Federation, it is not only subject to the wide, undefined and continually expanding paramountcy jurisdiction, but it is also to acknowledge the direct authority over its citizens of a legislature which under the law will itself be a law-making body subordinate to Parliament and whose decisions will be subject to the control of the British Executive through the Viceroy. Any claim to sovereignty or even part-sovereignty after joining the Federation under the circumstances is a ludicrous abuse of a hallowed word. But the Indian States persist in this fancy, and Parliamentary statesmen see advantage in encouraging it.

Having assumed that these States possess sovereignty and that such sovereignty can and should be maintained and protected even when they have become members of the Indian Federation, the authors of the White Paper invented the method of Treaties of Accession for effecting this purpose. Each State is to enter into a separate treaty with the Crown by which it would place at the disposal of the Crown certain powers for being exercised by the Federal authorities, in consideration of its being allowed to participate in certain Federal state-activities. Different States may have different provisions in these treaties, and these would remain in force as sources of the Constitution along with the Constitution Act, if not actually superior to it, The treaties are of perpetual obligation and could be altered only with the consent of the State concerned and the British Crown; the Federation itself has no say in the matter, So far as questions arising from the treaties are justiciable, they would be decided by the Federal Court and the Privy Council, and in non-justiciable matters, the Crown of England as the dominant party will have the last word, By calling this agreement a treaty, there is a recognition of the State’s ‘sovereignty’; by making the treaty the primary source of the Constitution, that sovereignty is sought to be preserved in the Federation.

The Irish Free State introduced the novelty of a Constitution based upon, and related to a treaty, The difficulties to which it has given rise are in no small measure due to this very origin. Because it is a treaty, the present Government of the Irish Free State feels justified in invoking sanctions of international law to alter its provisions, Is not this precedent a warning to those whose desire is to build the edifice of the new State merely upon foundations of constitutional law such as Federalism means? A treaty is an engagement between independent States. Bouvier defines a treaty as a ‘compact made between two or more independent nations with a view to the public welfare.’ ⁸ How could you have a treaty between territories of the same State?

The concept of a federal state involves the operation as regards all parts of the Federation of domestic law under the sanctions known to it. If there is a conflict between the Federal and State authorities, it would not justify the intervention of foreign powers to help either of them. The use of treaties to regulate the relation between parties so situated is unknown to political practice. Federal compacts are indissoluble, and consequently, no unit of a Federation has a right of secession. The American Civil War established this princjple. ⁹ But treaties presuppose a right in the parties to denounce them in appropriate circumstances.¹⁰ The Secretary of State for India has declared that the Indian States should make up their minds once for all to enter the Federation or not; after they shall have come in, the decision is irrevocable.¹¹ The difference in status and rights between a High Contracting Party to a treaty and a mere federal unit, seen from this aspect, is fundamental and striking.

Nextly, while treaties may have the same validity as statutes before municipal tribunals, they are always subject to the Constitution itself. Bouvier states the law thus: ‘It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.’ ¹² The scheme of the White Paper is that these so-called Treaties of Accession should, wherever they conflict with the Constitution Act, prevail over it; a reversal of the self-evident law of constitutional governments. The point was just touched in the evidence of the Secretary of State for India before the Joint Select Committee, but was dealt with most perfunctorily and amateurishly. Its importance deserved a much fuller treatment.¹³

I shall state a few more objections to this proposal quite briefly. The Courts of the land will be in some perplexity in determining where constitutional law as laid down in the Act ends, and where the international law of the treaties begins. Many different rules of interpretation have to be applied to a statute and to a treaty. For example the maxim ‘rebus sic stantibus’ will not avail against a statute, while one has to bear it very much in mind in construing a treaty. Serious embarrassment and possible injustice might flow from having the law determined upon two sets of interpretations, and two sets of sanctions.

Again, if the purpose of the Federal constitution is to foster a sense of Indian nationalism, the existence of the treaties will keep alive the separatist tendencies and thwart that great purpose; Each State will feel that it is a specially privileged member of the Federation, and this will give a most unhealthy parochial bias to the patriotism of Federal citizens living within its territories.

I come now to a vital aspect of this difficult question. The power of amending the Constitution, everywhere important, is in the Indian Federal system crucial. To start with, the Federal units will enjoy unequal powers vis-a-vis the Federal Government. This lack of reciprocity must be made up in course of time, if the Constitution is not to degenerate into an elaborate and complex machinery for the exploitation of some parts of India by the rest. If every change of the Constitution must receive the consent of each of the units which considers that by that change its treaty rights are invaded, the result in practice would be to give the liberum veto to even the most insignificant State-member of the Federation. The trouble and delay of getting each of the States to agree to a change, and of amending treaty after treaty can easily be imagined. Our constitution will be unduly rigid, so rigid indeed that with the growth of popular and progressive opinion, its failure to react to that opinion timely may have the result of forcing a revolution in the place of a peaceful amendment of the constitution as in other countries.

The power of altering the treaties so as to vary or add to the jurisdiction of the Federation resting with the State and the Crown, it can never be exercised by any authority within the Federation; with the result that at no time in the future could India enjoy one of the important attributes of Dominion Status, the constituent power. The British Parliament and Executive acting through the Crown will hold perpetual authority within the Federation, in their right as parties to the treaty with the States and as guarantors for the performance by the Federation of its conditions. It is in this way that the Treaties of Accession, in the manner proposed, render impossible the supreme purpose of the new federal constitution which is to make a full-fledged Dominion of India, in the future. India cannot ever become a Dominion if the treaties exist with the British Crown as party and British resources as sanction for their performance. India cannot become a Dominion if every single alteration of her constitution involves a revision of each of these treaties, which in its turn implies virtual unanimity, in any event as regards the States section of the units of the Federation India can never be called a Dominion so long as every change in her constitution has to be sanctioned and brought about by the British Executive.

The irresistable consequence of our accepting the treaty method is thus to abdicate our right to Dominion Status now and for all time.

I hope I have shown that the proposal as regards the accession of the states is unscientific, inconvenient if not dangerous, grossly unjust to the British Indian Provinces, and destructive of the ultimate objective of the Constitution. In drafting laws, and especially the Constitution Act which is usually described as the fundamental or organic law of the land, the greatest care must be taken in determining what are the rights which should be recognised and declared; and the methods by which they are to be protected should also be clearly stated. Why deliberate departure from this sound principle should be made in enacting the Indian constitutional law is not clear. A sovereignty that does not exist is ardently recognised; Dominion Status which cannot and is not meant to be attained is pompously declared as the governing purpose of the constitution; and conflicting authorities and inconsistent sanctions are provided for the working of this ‘bastard federalism’ as Sir John Marriott would probably call it. ¹⁴

No solution of this question is possible unless the States accept what is a fact, that by entering the Federation they become legally subject to Parliamentary sovereignty. They and the British Indian Provinces must labour together there-after to attain Dominion Status, which is only possible by developing India’s nationhood. It is only by becoming a Dominion that the Federation can eliminate Parliamentary sovereignty.

The body of the Constitution Act should contain only those provisions which are applicable to all the units, while other matters should be set down in schedules. The treaties will cease to be of effect after federation, but its operative provisions will come into the Act or its schedules. The Act and its schedules will, for the present, remain subject to amendment only by or under the directions of Parliament, and that body can be trusted not to endanger the rights of States unduly. But it is contemplated that at some time, the Federation will, by becoming a Dominion, acquire this amending power also. Sufficient mutual confidence, unity of interests and national patriotism would have grown at that time to make the devolution of the amending power to the Federation both desirable and just. A State which wishes to insure against the authority of the Federation in this matter at any time in the future, however remote, had better stay out of the Federation, than come in and thwart the full bloom of a self-determined Indian nation, which is the ideal of even the most pessimistic Indian.

In this view, the Provincial constitutions will have to be taken out of the Federal Constitution Act, and separately enacted.

I venture to invite attention to this and other possible lines of solving this complex problem.