VII THE BANE OF THE FEDERAL SCHEME

 VII
THE BANE OF THE FEDERAL SCHEME

There is no one who does not recognize that this Scheme for an All Indian Federation is full of defects. A difference of opinion arises only when the question is asked what shall we do about it. The answers given to this question by prominent Indians from time to time disclose that broadly speaking, there are two quite different attitudes to this Federation. There is the attitude of those who think that bad as it is, we should accept the Federation and work it so as to derive whatever good it can yield. On the other hand, there is the attitude of those who think that certain changes must be made in the Constitution of the Federation before it can be accepted and worked. It is agreeable to find that both the Congress as well as the Liberal Federation are one on this issue, Both have declared that certain changes must be made before they will accept to work the Federation.

That this Federation is not acceptable to a large majority of the Indian people is beyond question. The question is in what respects should we require the Constitution to be amended ? What are the changes which we should demand ? We may take as our starting point the resolutions passed by the Congress and the Liberal Federation relating to this question.

The Congress at its session held at Haripura in 1938 passed the following resolution:

"The Congress has rejected the new Constitution and declared that a Constitution for India, which can be accepted by the people, must be based on independence and can only be framed by the people themselves by means of a Constituent Assembly, without interference by any foreign authority. Adhering to this policy of rejection, the Congress has, however, permitted the formation in provinces of Congress Ministries with a view to strengthen the nation in its struggle for independence. In regard to the proposed Federation, no such considerations apply even provisionally or for a period, and the imposition of this Federation will do grave injury to India and tighten the bonds which hold her in subjection to imperialist domination. This scheme of Federation excludes from the sphere of responsibility vital functions of Government.

The Congress is not opposed to the idea of Federation: but a real Federation must, even apart from the question of responsibility consist of free units enjoying more or less the same measure of freedom and civil liberty, and representation by the democratic process of election. The Indian States participating in the Federation should approximate to the provinces in the establishment of representative institutions and responsible Government, civil liberties and method of election to the Federal Houses. Otherwise the Federation as it is now contemplated, will, instead of building up Indian unity, encourage separatist tendencies and involve the States in internal and external conflicts.

The Congress therefore reiterates its condemnation of the proposed Federal Scheme and calls upon the Provincial and Local Congress Committees and the people generally, as well as the Provincial Governments and Ministries, to prevent its inauguration. In the event of an attempt being made to impose it, despite the declared will of the people, such an attempt must be combated in every way and the Provincial Governments and Ministries must refuse to co-operate with it. In case such a contingency arises, the All India Congress Committee is authorised and directed to determine the line of action to be pursued in this regard."

The resolution passed by the National Liberal Federation at its last session held in Bombay was in the following terms:

" The National Liberal Federation reiterates its opinion that the Constitution, especially as regards the Centre as embodied in the Government of India Act, 1935, is utterly unsatisfactory and in several respects retrograde. While the National Liberal Federation accepts a federal form of Government for India as the only natural ideal for our country, the Federation considers that vital changes are required in the form of the Federation as laid down in the Act especially in the direction of (a) clearing up the position of the Princes and securing the subjects of States the right of election of States' representatives, (b) doing away with the safeguards regarding the monetary policy and commercial discrimination, (c) introducing direct elections for the members of the Federal Assembly by the Provinces and (d) making Constitution sufficiently elastic so as to enable India to attain Dominion Status within a reasonable period of time.

The National Liberal Federation considers that the present position when there is an irresponsible Government in the Centre coupled with responsible Governments in the Provinces is altogether untenable and earnestly urges on Parliament to make immediate changes in the Federal part of the Constitution so as to make it generally acceptable.

The Federation is further of opinion that these modifications are essential for the successful working of the Federal Constitution."

Should these changes demanded by the Congress or by the Liberal Federation suffice to alter the present attitude of rejection into one of acceptance of Federation? Speaking for myself I have no hesitation in saying that the changes asked for in these Resolutions even if they are made will not convert me. To my mind whether the British Parliament is prepared to alter this, that or the other detail of the Federal Scheme immediately is a very unimportant consideration. In the view I take of the matter the objections to the Federal Scheme will not be removed in the least even if the British Parliament will be ready to grant every one of the demands contained in these Resolutions. To me the fundamental question is whether this Federal Scheme is capable of so evolving that in the end India will reach her goal and it is from this point of view that I want you and every one interested to examine the Federal Scheme.

What is the goal of India's political evolution ? There does not seem to any fixity or definiteness about it. The Congress which claims to voice the political aspirations of the Indian people began with good Government as its goal. It moved from good Government to Self-Government or Responsible Government; from Responsible Government to Dominion Status and from Dominion Status it advanced to Independence. There the Congress stopped for some time in a mood of self-examination. Then there was period of vacillation. Now it seems to have come back to Dominion Status and we shall not be very wrong if we take that to be the goal of India according to the Congress. Now the question is, can the Federal Scheme blossom in due course into Dominion Status ?

Many Indians seem to think that the question of Dominion Status is a matter of gift which lies in the hands of the British Parliament. If the British Parliament were to make up its mind to grant it, nothing can stand in the way. They contend that if India has no hope of Dominion Status, it is because the British Parliament refused to grant it. In support of their opinion they refer to the refusal of The British Parliament to add a Preamble to the Act of 1935 declaring Dominion Status as the goal for India.

It must be granted that the demand for such a preamble was a very proper one. In 1929 Lord Irwin with the consent of all the political parties in the British Parliament declared that the goal of India's political evolution was Dominion Status. What the Indians therefore wanted was not new. It had already been so stated authoritatively by the Governor-General and Viceroy, but the British Government refused to put such a preamble. The refusal was therefore arrange piece of conduct on the part of the British Government. But the grounds urged in support of the refusal were stranger still. The British Government sought to justify their conduct in not having a preamble in those terms on various grounds.

The first ground was that a preamble was a futility and that it had no operative force, but that argument was easily met. All Acts of Parliament have had Preambles expressing the purpose and the intention of Parliament. It is true that it has no legal effect, but all the same Courts have not held that a preamble is a futile thing. On the other hand, wherever there is any doubt with regard to the wording of a section, Courts have always resorted to the preamble as a key to understand the purpose of the enactment and made use of it for resolving any doubtful construction. Driven from this position, the British Government took another position and that was to repeal the Act of 1919 but to retain the Preamble to that Act. This again is a very queer thing. In the first place if the Preamble is a futility, there is no necessity to save the Preamble enacted as part of the Act of 1919. Secondly 'if the Preamble to the Act of 1919 was a necessity, it should have been enacted afresh as a part of this Act of 1935, which the British Government would not do. Instead it preferred to present the strange spectacle of the head separated from the trunk. The head is now to be found in the repealed Act of 1919 and the trunk is to be found in the present enactment of 1935. In the third place, what the Indian people wanted was a preamble promising Dominion Status and that is what the declaration of Lord lrwin contained. The preamble to the Act of 1919 speaks only of Responsible Government. It does not speak of Dominion Status and the retention of the Preamble to the Act of 1919 was to say the least the silliest business possible.

Why did the British Parliament refuse to enact a Preamble defining Dominion Status as the goal ? Why did the British Parliament run from pillar to post rather than grant the demand ? The explanation offered is of course the usual one namely, the perfidy of the Albion! My own view is different. The British Parliament did not promise Dominion Status by enacting a preamble because it realized that it would be beyond its power to fulfil such a promise. What the British Parliament lacked was not honesty. Indeed it was its honesty which led it to refuse to enact such a preamble because it knew that it could not give effect to such a preamble. What it lacked was courage to tell the Indians that the Federal Scheme left no way for Dominion Status.

Why is Dominion Status impossible under the Federal Scheme ? It is impossible because it is not possible to have Responsible Government. It must be borne in mind that to reach Dominion Status, India must first attain Responsible Government. To attain Responsible Government the subjects which are reserved must become transferred. That is the first stage in the process of evolution towards Dominion Status.

Some of you will want to know the reasons why I say that the reserved subjects cannot become transferred. They are sure to recall that there were Reserved subjects in the Provincial Scheme as they are in the Federal Scheme and will ask that if the reserved subjects have become transferred in the course of say 20 years what difficulty can there be in the similar things happening in the Federation. As the question is important, I proceed to give my reason. In the first place, the analogy of the Provinces is false. It is important to note why the analogy is false. It is false because in the Provincial Scheme the distinction between the reserved and the transferred subjects was based upon the requirements of administrative efficiency. That the distinction between the reserved and the transferred subjects in the Federal Scheme is based upon legal necessity and not upon administrative efficiency needs no proof. One of the reasons why the Simon Commission did not recommend dyarchy at the Centre was that it felt that administratively it was not possible to divide subjects into two water-tight compartments, one reserved and the other transferred, without affecting the efficiency of all; and the Government of India's despatch on the Simon Commission entirely agreed with the view. The division, therefore, is not administrative in its basis, It is the result of a legal necessity. This is a fundamental distinction and ought never to be lost sight of.

How does this legal necessity arise? I say the legal necessity for treating certain subjects as reserved arises because of the Indian States. I go further and say that there would be necessity for treating certain subjects as reserved if the Federation was confined to the British India Provinces only. The reservation of certain subjects is a direct consequence of the entry of the Indian States into the Federation.

What is it, in the position of the Indian States which compels certain subjects to be treated as reserved ? To be able to answer this question I must first draw your attention to section 180 of the Government of India Act. Section 180 says—

"Any contact made before the commencement of Part III of this Act by or on behalf of the Secretary of State in Council solely in connection with the exercise of the functions of the Crown in its relations with Indian States, shall, as from the commencement of Part III of this Act, have effect as if it had been made on behalf of His Majesty and references in any such contract to the Secretary of State in Council shall be construed accordingly."

This section gives statutory form to the contention put forward by the Princes before the Butler Committee and accepted by them, that the treaties of the Indian States were with the Crown of England as such and not with the Government of India.

The next step is to note what follows from this theory. Now what follows from this theory is very crucial, but has been unfortunately allowed to pass without due care and attention. The Princes have contended that as treaty relations of the Indian States are with the Crown of England, the duty and responsibility of fulfilling the obligations arising under those treaties lay solely upon the Crown of England and the Crown of England must at all times maintain itself in a position to fulfil those obligations.

What is the obligation which the treaties with the Princes impose upon the Crown of England? The Principle of obligation imposed upon the Crown of England and which the Crown of England has undertaken by the treaties is to protect the Princes from internal commotion and external aggression.

How can the Crown fulfil this obligation? The only way, it is argued, that the Crown can fulfil this obligation is to reserve external affairs and the Army under its exclusive control.

You can now understand why I say that the necessity of reserved subjects is due to a legal necessity. That legal necessity flows from the treaty obligations of the Crown and so long as the basis of the treaty relations remains what Section 180 says it is, the reserved subjects cannot become transferred subjects. And as the reserved subjects cannot become transferred, there is no scope even for Responsible Government much less for Dominion Status.

From the analysis I have made of the Constitution, from the standpoint of the ultimate goal, few, I believe, will have any hesitation to say that this Constitution is a fixed and rigid constitution. It cannot change and therefore it cannot progress. It is a constitution which is stricken at the very base and it is for the people of India to consider whether they will accept it.

I have examined the Constitution from the standpoint of our goal at so considerable a length that I feel I owe you an apology for tiring you. But the attitude of some people towards this question must be my excuse for entering into this subject at such great length. I realize that no Constitution is a perfect constitution. Imperfections there are bound to be. But I think a distinction must be drawn between imperfections and inherent and congenital deficiencies. Imperfections can be removed. But congenital deficiencies cannot be supplied. The demands made in the resolutions of the Congress or of the Liberal Federation, even if granted, will remove the imperfections. But will they remove the deficiencies ? I would not mind the imperfections if I was assured that there are no deficiencies. The greatest deficiency in the Constitution is that it will not lead to Dominion Status. Neither the Congress nor the Liberal Federation seems to be aware that this deficiency exists. Their demands have no relation to the goal of India's political evolution. They do not even mention it. It is surprising that Congressmen should have become so enamoured of the prospect of seizing political power that their demands against the British Government should not even contain a declaration from the British Government in this behalf. But if Congress forget, the people of India cannot and should not. To do so would be fatal. It would be fatal as much for an individual as for a people to forget that a stage on the way is not the home and to follow the way without knowing whether it leads homewards or not is to misdirect one-self and fall into a ditch.

You must not misunderstand me. I am not an impatient idealist. I am not condemning the gradualist, who is prepared to wait and take thing by instalments, although the gradualist, who has a valid claim for a rupee, demands an anna and proclaims a great victory when he gets a pie, must become an object of pity. All I want is that if circumstances force us to be gradualists we must not fail to be realists. Before accepting an instalment we should examine it carefully and satisfy ourselves that it contains an acknowledgement of the whole claim. Otherwise, as often happens what is good for the moment turns out to be the enemy of the better.

Some of you will ask, how can India secure Dominion Status. My answer is India will get Dominion Status only if the Princes who join the Federation, consent to its being granted. If the Princes object to the grant of Dominion Status to India, then India cannot get Dominion Status. The Federation places the strings of India's political evolution in the hands of the Princes. The destiny of India will be controlled by the Princes.

This view of the future will strike as very strange to a great many of you. We are all saturated with Dicey's dictum regarding the Sovereignty of Parliament. We all have learned from him that Parliament is supreme, that it is so supreme that it can do anything except make man a woman and woman a man. It would not be unnatural if some of you ask how can the Princes stand in the way when the British Parliament is supreme. It will take some effort on your part to accept the proposition that the British Parliament has no supremacy over the Indian Federation. Its authority to change the Federal Constitution now embodied in the Government of India Act is strictly limited.

Indian politicians have expressed their sense of sorrow and resentment over the fact that the Indian Legislatures have not been given by the Act any constituent powers.

Under the Government of India Act neither the Federal Legislature, nor the Provincial Legislature have any powers of altering or amending the constitution. The only thing, which the Act by virtue of section 308 does. is to permit the Federal Legislature and Provincial Legislature to pass a resolution recommending any change in the constitution, and make it obligatory upon the Secretary of State to place it before both Houses of Parliament. This is contrary to the provisions contained in the Constitutions of the United States, Australia, the German Federation and Switzerland. There is no reason why constituent power should not have been given within certain defined limits to the Legislatures in India when they were fully representative of all sections and of all interests. Be that as it may, the fact remains that the Indian Legislatures cannot make any changes in constitution, not even in the franchise, much less in making the reserved subjects transferred. The only authority which can change the Constitution is of course the British Parliament. But very few seem to be aware of the fact that even Parliament has no powers to alter the Federal Constitution. This, however, is the truth and the sooner we all realize it the better.

From this point of view the importance of Schedule II cannot be overestimated. I am sorry, it has not received the attention which it deserves. Schedule II is not only a charter but is also a chart along which the Constitution can move. The whole Schedule is worth careful study. What does Schedule II say ? Schedule II says that certain provisions of the Government of India Act may be amended by Parliament and that certain other provisions of the Act shall not be amended by Parliament. That is simply another way of saying that Parliament is not supreme and that its right to alter the Constitution is limited.

What would happen if Parliament did amend those provisions of the Act which Schedule II says shall not be amended by Parliament ? The answer, which Schedule II gives, is that such an Act will have the effect of ' affecting ' the accession of the States to the Federation, which means it will have the effect of destroying the binding character of the Instrument of Accession. In other words, if Parliament amended any of the provisions of the Act, which Schedule II says shall not be amended, the Princes would get the right to secede from the Federation. I am aware that some eminent lawyers have taken a different view. They hold that the Princes, once they come into the Federation, cannot go out of it. I have mentioned my view for what it is worth and I will say that my view is not altogether baseless.

At any rate the Solicitor-General and Secretary of Stale gave the same interpretation, as I am giving, in the House of Commons, when the Government of India Bill was being discussed.

The Solicitor-General said:

"The States will not agree to federate in a structure which within limits, is definite and certain and obviously we could not completely alter the structure afterwards. The purpose of this clause is to lay down those matters which can be altered without being regarded as fundamental or as impinging on the Instrument of Accession." ...... "If the structure were to be altered in fundamental respects, of course the States would clearly have the right to say "This is not the Federation to which we have acceded."

The Secretary of State said :

" If you amend the parts of the Bill which affect the States, obviously you would be altering the conditions on which they have acceded and that would certainly create a situation in which the Princes could rightly claim that their Instrument of Accession had been altered. It certainly means that we cannot amend any part of the Bill which affects what is virtually the treaties under which the Princes come in. If we make a change in the Bill as to strike at the basis of their Instrument of Accession then obviously, the agreement has been broken between the Princes and Parliament and the Princes are free."

" It will be accepted by every one that under the general scheme of the Bill the States, when they are asked to federate are entitled to know with certainty certain aspects at any rate, of the Federation to which they are to accede. It would be an absurd position if having said to a State this month, "Will you accede to a Federation," it was possible next month for this House to alter in some fundamental respects the provisions of the Federation to which the State was held to have acceded. Therefore, some schedule of this kind is necessary. It is a sorting out of the various parts of the Bill which should be capable of amendment without in any sense altering from the point of view of the States the constitutional machinery to which they have acceded. The scheme of the Schedule is to set out the provisions of the Act, the amendment whereof is not to affect the validity of the Instrument of Accession of a State."

" One sees set out those parts of the Bill the amendment of which is not to affect the validity of the Instrument of Accession of a State, and on the opposite side there are set out those subjects the amendment of which, would affect the validity of accession. In drawing up a schedule of this kind one has to proceed with great cure in defining what are the legitimate matters on which the Rulers of a State are entitled to ask that there shall be no amendment without their consent. Of course there will be borderline cases. There could be minor amendments, which would not really make any great difference to the existing position, and it would be very unreasonable if the States took objection to such amendments and said, "We are going to stand on our rights on this point as affecting the validity of our Instrument of Accession." It is right that any matter which really affects what I may call the general balance of powers, the questions of the reservation of subjects of executive control and of matters which can be dealt with by the Governor-General in his discretion, matters which are vital to the architecture of the Federation to which the States are asked to accede, should not be amended without their assent.

"The whole area of the special powers vested in the Governor-General is one of the essential features of the Federation. That is one part where the States are entitled to say ' That is a change ' or 'That is altered'. But this does not in any way check for all time the development of India. These are to be the subject-matter of negotiations with the States, because, in effect, they will produce a Federation of a different kind from that to which the State has acceded."

Therefore to the question what would happen if Parliament did make such changes which by virtue of Schedule II are treated as changes which will affect the Instrument of Accession the answer is that the Princes will get a right to walk out of the Federation. In other words, the consequence of any such change would be to break up the Federation.

What are the changes which cannot be made without affecting the Instrument of Accession ? I will draw your attention to some of the provisions which Schedule II says cannot be amended by Parliament without affecting the Instrument of Accession. According to Schedule II no changes in the Constitution can be made which relate to (1) the exercise by the Governor-General of the executive authority of the Federation; (2) the definition of the functions of the Governor-General; (3) the executive authority of the Federation; (4) the functions of the Council of Ministers and the choosing and summoning of ministers and their tenure of office; (5) the power of the Governor-General to decide whether he is entitled to act in his discretion or exercise his individual judgment; (6) the functions of the Governor-General with respect to external affairs and defence; (7) the special responsibilities of the Governor-General relating to the peace and tranquillity of India or any part thereof; (8) the financial stability and credit of the Federal Government; (9) the rights of the Indian States and the rights and dignity of their Rulers; (10) the discharge of his functions by or under the Act in his discretion or in the exercise of his individual judgment; (11) His Majesty's Instrument of Instructions to the Governor-General ; and (12) the superintendence of the Secretary of State in the making of the rules for the Governor-General in his discretion for the transaction of and the securing of transmission to him of Information with respect to, the business of the Federal Government.

Schedule II is a very extensive collection of constitutional don'ts. I have given just a few of them. They will however be sufficient to show how limited is the authority of Parliament to make changes in the Constitution.

Why is the authority of Parliament limited ? To understand this it is necessary to note the exact limits of the authority of Parliament. According to law the authority of the Parliament to legislate extends only to countries which are the Dominions of the King. The States did not form part of the Dominions of the King and none of them not even the finest of them was subject to the legislative authority of Parliament. The Government of India Act makes no change in this status of the States. The States remain foreign territories in spite of the Federation, and as they were before Federation. This is the most extra-ordinary state about the Indian Federation, namely that the different units are as between themselves foreign states. As the Act does not make the States Dominions of the King, Parliament gets no right to legislate about them. Parliament derives its authority over the States from the Instrument of Accession. That being so, the authority of Parliament cannot but be limited to what is transferred to it by the States 'through their instruments. To use the language of the Privy Council itself, as the stream can rise no higher than its source, similarly. Parliament cannot have powers over the States greater than those, given to them by the Instrument of Accession. This explains why the authority of Parliament to amend the Constitution is limited.

The analysis made so far shows that the authority of Parliament to change is limited by the Instrument of Accession and that for any excess of authority, there must be prior consent given by the Princes. As a legal effect of the provisions of the Act it may not be shocking. But consider the fact that the provisions in regard to which Parliament has no power to change include those that relate to the transposition of such subjects as Defence and External affairs from the category of Reserved to that of the Transferred and that it will not have that power unless the Princes consent expressly to confer that authority on Parliament and permit it to do so. You will be in a position to realize how grave are going to be the consequences of this Federation. The establishment of the Federation means that the mastery has gone from the hands of Parliament into the hands of Princes. This Federation makes the Princes the arbiters of destiny. Without their consent India cannot politically advance.

Other consequences of this Federation might also be noted. I will just refer to one. It is that this federation, if accepted will weaken the position of British Indians in their struggle for change. Hitherto, in the struggle between the Indian people and the British Parliament the latter was always the weaker party. It had nothing to oppose the right of the people to change except its will. After the Federation the position is bound to be reversed. The Indian people would be in a weaker position and Parliament would be in a stronger position. After the Federation, Parliament would be in a position to say that it is willing to grant the demand for change but that its authority to change is limited and that before making any demand for change. Indians should obtain the consent of the Princes. There is nothing to prevent Parliament from taking this stand.


What reply would Indians be able to give if they once accept the Federation and thereby admit the implications underlying it ?