In the era before 1947 the term “State” applied to a political community occupying a territory in India of defined boundaries and, subject to a single Ruler who enjoyed or exercised, as belonging to him, any of the functions and attributes of internal sovereignty duly recognised by the British Crown. There were in India more than 560 States, forty out of those States had treaty relations with the Paramount Power, a larger number of States had some form of engagements or sanads, and the remaining enjoyed in one or the other form ‘recognition of their status by the British Crown. The treaties, engagements and sanads covered a wide field, and the rights and obligations of the States arising out of those agreements varied from State to State.
Paramount Power of British Crown
The rights that the British Crown as the Paramount Power exercised in relation to the States covered authority in matters external as well as internal. The States had no international personality, the Paramount Power had exclusive authority to make peace or war, or to negotiate or communicate with foreign States. The Paramount Power had the right of intervention in internal affairs which could be exercised for the benefit of the head of the state of India as a whole, or for giving effect to international commitments.
The Government of India Act, 1935, was a step in the direction of achieving a political unity over the entire subcontinent. it envisaged a constitutional relationship between the Indian States and Provinces in British India on a federal basis. But the concept of a loose federation of disparate constituent units in which the power and authority of the Federation were to differ between one constituent unit and another was soon abandoned as inherently impracticable.
The Second World War awakened a new consciousness which regarded colonialism as an anachronism. With the object of transferring power to a Dominion, several schemes were evolved by the British authorities from time to time. There was the Cripps Plan, followed by the Simla Conference of 1945, and the Cabinet Mission Plan of 1946. The Cabinet Mission issued a Memorandum dated May 12, 1946, in regard to the States’ Treaties and to Paramountcy: it affirmed that the rights of the States which flowed from their relationship with the Crown will no longer exist and that the rights surrendered by the States to the Paramount Power will revert to the States.
The void caused by the lapse of paramountcy, it was said, may be filled either by the States entering into a federal relationship, with the successor Government or Governments in British India, or by entering into a particular arrangement with it or them.
The Lapse of British Crown Paramountcy
On May 16, 1946, the Cabinet Mission announced its Plan for the entry of the States into the proposed Union of India. They simultaneously declared that the paramountcy of the British Crown could not be retained nor transferred to the new Government. The British Parliament decided to set up the two Dominions of India and Pakistan, and promulgated on July 18, 1947, the Indian Independence Act, 1947.
By s. 1, two new independent Dominions of India and Pakistan were set up as from August 15, 1947, and s. 7 of the Act provided:
“(1) As from the appointed day-
(a) His Majesty’s Government in the United Kingdom have no responsibility as respects the government of any of the territories which, immediately before that day, were included in British India;
(b) the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States, all obligations of His Majesty at that date towards Indian States or the rulers thereof and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or other-wise; and
“Provided that, notwithstanding anything in paragraph (b) or paragraph (c) of the sub- section, effect shall, as nearly as may be continued to be given to the provisions of any such agreement as is therein referred to which relate to Customs, transit and communications, posts and telegraphs, or other like matters, until the provisions in question are denounced by the ruler of the Indian State or person having ,authority in the tribal areas on the one hand, or by the Dominion or Province or other part thereof concerned on the, other hand, or are superseded by subsequent agreements,
(2) The assent of the Parliament of the United Kingdom is hereby given to the omission from the Royal Style and Titles of the words “Indiae Imperator” and the words “Emperor of India”, and to the issue by His Majesty for that purpose of His Royal Proclamation under the Great, Seal of the Realm.”
The procedure of accession
By the Indian (Provisional Constitution) Order, 1947, ss. 5 & 6 of the Government of India Act, 1935, were extensively amended, setting up machinery for the Indian States to accede to the Dominion of India. Promulgation of the Indian Independence Act generated great political activity. On July 5, 1947, Sardar Vallabhbhai Patel, Minister for Home Affairs, made a statement defining the policy of the Government of India, and inviting the Princes to accede to the Dominion on three subjects-Defence, Foreign Affairs and Communications, in which the common interests of the country were involved.
He assured the Princes that the policy of the States Department (which had been set up in place of the Political Department) was not to conduct the relations with the States in a manner savouring of domination of one over the other; the domination, if any, would be the domination of mutual interests and welfare. He expressed the hope that the Princes would bear in mind that the alternative to cooperation in the general interest was anarchy and chaos which would overwhelm the great as well as the small in a common ruin, if the States and Provinces were unable to act together in the minimum of common tasks.
On July 25, 1947, at a special meeting of the Princes, Lord Mountbatten–the Crown representative–advised the princes to accede to the appropriate Dominion in regard to the three subjects of Defence, External Affairs and Communications, and assured them that their accession on those subjects would involve no financial liability and in other matters there would be no encroachment on their internal sovereignty. The plea for accession met with a favourable response. Negotiations for accession of the States were soon completed and instruments, of accession were executed by the heads of the Indian States. Simultaneously, Standstill Agreements, the acceptance of which was made by the Government of India a condition of accession by the States concerned, were also entered into between the Dominion Government and the acceding States.
The Standstill Agreements recited:
“Whereas it is to the benefit and advantage of the Dominion of India as well as of the Indian States that existing agreements and administrative arrangements in the matters of common concern, should continue for the time being between the Dominion of India or any part thereof and the Indian States: Now therefore it is agreed between the State and the Dominion of India that: –
“1. (1) Until new agreements in this behalf are made, all agreements and administrative arrangements as to matters of common concern now existing between the Crown and any Indian State shall, insofar as may be appropriate, continue as between the Dominion of India, or, as the case may be, the part thereof, and the State.
(2) In particular, and without derogation from the generality of sub-clause (1) of this clause the matters referred to above shall include the matters specified in the Schedule to this Agreement.
3.Nothing in this agreement includes the exercise of any paramountcy functions.”
By the instruments of accession the Princes were assured that the terms of the instrument will not be varied by any amendment of the Government of India Act, 1935, or the Indian, Independence Act, 1947, unless such amendment be accepted by the Prince by a supplementary instrument; that nothing in the instrument shall be deemed to commit the Prince in any way to, acceptance of any future Constitution of India or to fetter his discretion to enter into agreements with the Government of India under any such future Constitution, and that nothing in the instrument shall affect the continuance of the Princes sovereignty in and over the State or save as provided by or under the instrument, the exercise of any powers, authority and rights enjoyed by the Prince as head of the State or the validity of any law in force in the State.
This was a significant step in the direction of forging a vital constitutional link between the Dominion of India and the States. It was followed by the next phase culminating in integration of some States in the Provinces consolidation of other States into sizable administrative units, and some other States executing agreements integrating with the Dominion.
The process of integration of States varied from State to State-
- 216 out of the States merged with the existing Provinces;
- 61 States were taken over as Centrally administered areas; and
- 275 States were integrated in five Unions of States, Saurashtra, Madhya Bharat, Rajasthan, Pepsu and Travancore-Cochin.
Merger of the States with the Provinces was achieved initially in name only, because the authority–executive, legislative and judicial-was still exercised under the Extra-Provincial Jurisdiction Act by the Provinces within which the States were initially merged. The merger agreements of the Unions of States were to operate as their provisional Constitutions. Even the Centrally administered areas did not become part of the Dominion territory. The instruments of merger provided for the integration of States and for transfer of power from the Princes and guaranteed to the Princes the privy purse, succession to the gaddi, rights and privileges, and full ownership, use and enjoyment of all private properties belonging to them as distinct from State properties.
The covenants for establishing Unions of States and the agreements of merger contained provisions guaranteeing to the heads of merged States or integrated States payment of privy purses. These instruments were concurred in and guaranteed by the Government of the Dominion of India. The next phase was of assimilation and consolidation of the unity achieved till then. In the case of the “Provincially merged” and “Centrally administered” States, authority for exercising the powers of administration and legislation originally derived from the Extra-Provincial, Jurisdiction Act, 1947, was later exercisable by virtue of orders issued under ss. 290A and 290B incorporated in the Government of India Act, 1935, with effect from January 15, 1949.
By an order issued under S. 290A diverse steps were taken for integration of the former State into the Provinces. To ensure an organic unity of India, the Princes were invited to accede to the Dominion, and later to integrate with India under a Constitution with a Republican form of Government. The Princes, some out of patriotism and others from motives of self-interest, agreed to merge their territories and to abandon all authority in regard to their territories in consideration of certain special concessions.
To give constitutional sanction to the merger agreements, special provisions were expressly incorporated in the draft Constitution recognising the status of the Princes, the obligation to pay the privy purse, and the personal rights and privileges guaranteed to them- The territories of the States after integration retained no political or legal identity. Special recognition was given to the status of the Princes and to their rights and the obligations of the Union, and for that purpose, Arts. 366(15), 366(22), 291 and 362 were incorporated in the Constitution.
In Art. 366(15) the expression. “Indian State” was defined as meaning any territory which the Government of the Dominion of India recognised as such a State; and in Art. 366(22) a special definition of the expression “Ruler” was evolved for the purpose of the Constitution; by Art. 291 the privy purse was charged on, and made payable out of, the Consolidated Fund of India, and the sum so paid as privy purse to the Ruler was declared exempt from all taxes on income.
By Art. 362 the Parliament, the State Legislatures and the executive of the Union and the States were enjoined to have “due regard to the guarantees and assurances” under the covenants and agreements between the Government of the Dominion of India and the heads of the former Indian States. The stage was then set for the promulgation of the Constitution. A few days before November 26, 1949, a large majority of the States proclaimed that the Constitution of India will be the Constitution for their respective territories, and shall be enforced as such in accordance with its provisions, and that the provisions of that Constitution shall, as from the date of its commencement, supersede and abrogate all other existing constitutional provisions inconsistent therewith. Merger agreements were executed to give effect to the proclamations. The proclamation and the execution of the merger agreements resulted in complete extinction of the States and Unions of States as separate units. The Princes ceased to retain any vestigage of sovereign rights or authority qua their former States. They acquired the status of citizens of India.
H. H. Maharajadhiraja Madhav Rao vs Union Of India; 1971 AIR 530,