British Paramountcy in India

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PARAMOUNTCY
 
The announcement by Travancore and Hyderabad to declare themselves Independent Sovereign States on 15th of August when India becomes a dominion and the inclination shown by other States to follow their example has created a new problem. The problem is a crucial one and requires to be seriously considered. There are two aspects to the question. Can the States declare themselves Independent ? Should they declare themselves Independent ? To begin with the first. The basis of the claim made by the States for a right to declare themselves independent lies in the Statement of 12th May 1946 issued by the Cabinet Mission in which they say that the British Government could not and will not in any circumstances transfer paramountcy to an Indian Government which means that the rights of the States which follow from their relationship to the Crown will no longer exist and that all the rights surrendered by the States to the paramount power will return to the States. The Statement of the Cabinet Mission that the Crown could not transfer paramountcy is obviously not a statement of political policy. It is a statement of law. The question is, is this a correct statement of the law as it applies to the States ? There is nothing original in the proposition set out by the Cabinet Mission. It is a mere repetition of the view propounded by the Butler Committee appointed in 1929 to examine the relationship between the Crown and the Indian States. As students of the subject know the Princes in the stand they took before the Butler Committee contended for two propositions :— (i) That Paramountcy could not override the terms and conditions contained in the Treaties between the Princes and the States but was limited by them. (ii) That the relations embodied in Paramountcy were of a personal nature between the Crown and the Princes and could not, therefore, be transferred by the Crown to an Indian Government without the consent of the Princes. The Butler Committee repudiated the first of these two contentions. It put the matter in most ruthless language by declaring that Paramountcy was Paramount and was not limited by any terms contained in the Treaties. As regards the second contention, strangely enough, the Butler Committee upheld. Whether it was to appease the Princes who were annoyed with the Committee for turning down the Princes' contention regarding Paramountcy it is no use speculating. The fact, however, remains that it gave immense satisfaction to the Political Department of the Government of India and to the Princes. The doctrine that Paramountcy cannot be transferred to an Indian Government is a most mischievous doctrine and is based upon an utter misunderstanding of the issues involved. The doctrine is so unnatural that the late Prof. Holdsworth, author of the History of English Law, had to exercise a great deal of ingenuity in defending it in the pages of the Law Quarterly Review for October 1930. Unfortunately, no Indian student of Constitutional Law has ever bothered to controvert his views with the result that they have remained as the last and final word on the subject. No wonder the Cabinet Mission adopted them as valid and acted upon them in settling the issue of British India vs. Indian States. It is a pity that the Congress Working Committee, which was negotiating with the Cabinet Mission for a settlement, did not challenge the proposition enunciated by the Mission in regard to Paramountcy. But these circumstances cannot take away the right of Indians to examine the matter de novo and come to their own independent judgement and stand for it if they are convinced that their view is the right view, no matter what the Cabinet Mission has said. The case against the position taken by the Cabinet Mission in regard to Paramountcy can be stated in the following propositions :— (1) Paramountcy merely is another...
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