II. Locating Princely State Sovereignty

Sovereignty of the Indian states has scarcely engaged the attention of scholars. As opposed to the British provinces, princely states such as Travancore claimed sovereignty over the British provinces because they far antedated the British occupation. A historical account of the evolution of the British paramountcy helps in understanding the peculiar legal domination that the British came to exercise over the states, often called indirect rule. Because of its legal nature, indirect rule in colonial India was different from any of its varieties elsewhere. Although some scholars argue that the putative interest in the national unity of India is a marker of nascent constitutionalism of the postcolonial Indian state, I posit that this has led to the occlusion of Indian states and their constitutionalism in the histories of Indian constitutionalism. As this article later demonstrates, Indian states such as Travancore were far more invested in national unity than the nationalists.

By 1803, the English East India Company's army had taken control of Delhi, and the Mughal emperor was put under the protection of the Marathas. The subjugation of the Marathas in 1818 through three Anglo-Maratha Wars, protracted over half a century, marked the ascendancy of the Company as the paramount political power in India. The treaties signed after 1813 were clearly unfavorable to the states as opposed to those signed earlier.Footnote ⁵ The principle of paramountcy is a statement of the superior political power of the British in India, and its first formal articulation was coeval with the defeat of the Marathas.Footnote ⁶ After the revolt of 1857, the Company rule in India came to an end, and the British crown (-in-Parliament) took over the direct rule over India. The Queen's Proclamation of 1858 assured that all the treaties subsisting between the states and the Company would henceforth be deemed as between the states and the crown. Therefore, after 1858, the treaty relationship had a different dynamic. The states had to now deal with a superior monarch as opposed to an (inferior) trading company. In 1877, Queen Victoria assumed the title of the Empress of India thereby completing the imperial encirclement of the Indian states.

After the Queen's takeover, even though the treaties continued to mediate the imperial relationship, extra textual principles such as paramountcy defined the domination over the states. Apart from the fact that paramountcy connoted a superior political power, there was no unanimity or certainty regarding what it actually meant in legal or constitutional terms.Footnote ⁷ However, for the purposes of this article, suffice it to say that the policy of paramountcy applied to the states alone. Paramountcy not only signified the political superiority of the British but also connoted a monarchical pyramid with the British monarch at the top, to be propped up by a base constituted of Indian monarchs of varying stature and power.Footnote ⁸ This pyramidal structure of royal authorities is indicative of the differentiated sovereignties that formed the imperial edifice in colonial India. All the states owed allegiance to the British crown at the same time as the latter was obligated to the continuation of dynastic/personal rule in the states. There is no better way to characterize this relationship than by expressing it as one between a superior and inferior monarch, a relationship predicated on the divisibility and layering of sovereignties.Footnote ⁹

Sovereignty in the Indian states was very different from that of the British provinces precisely because the latter did not antedate the British occupation. Even though many states were created by the British themselves, others far antedated the British and even the Mughals. Antiquity/history and dynastic prestige were the most important facts that defined the sovereignty of an Indian state in the eyes of the British. The Indian States Committee recognized that states as a diverse group. Only forty states had any kind of treaty relationship with the British. According to the committee, the one trait shared by the states was that the law of British India did not govern them.Footnote ¹⁰ However, this distinction has hardly been important to the historians of princely India who rather see states' associational politics at the national level and relocate them as agential players in the “end game of empire.”Footnote ¹¹

Indirect British rule over the states was predicated on divisible sovereignty. The states, by entering into treaties, agreed to delegate their external powers to the British, even as they retained control over internal matters. A state could not negotiate with domestic or foreign powers, but it could administer itself without any trammels as long as this did not turn into “misgovernment,” one ground for British intervention.Footnote ¹² British indirect rule had some parallels with precolonial forms of concurrent and shared sovereignties. For example, the Mughal king was deemed the emperor of India to whom many lesser kings owed allegiance. Paying tributes and ceremonial gifts to the emperor in return for provincial independence had always been a characteristic feature of the Indian polity.Footnote ¹³ Indirect rule as it obtained in India had no parallel with indirect rule in Africa. In Africa, indirect rule was effected though native chieftains, who were in most cases paid servants of the colonial state. This is in stark contrast to the autonomous princely states in India. However, native authorities in Africa maintained absolute control over their areas and were the ultimate arbiters of customary law, backed up by the might of the colonial state.Footnote ¹⁴ This two tiered structure of state, characteristic of indirect rule, can also be seen in India, even though states by virtue of their financial and political autonomy could negotiate the terms of British oversight far more effectively than the African chiefs.

An adequate conceptualization of indirect rule in India must question its undifferentiated character in order to unpack the layered and varied sovereignties compressed within it. The Indian states retained their direct relationship with the crown, and the British Parliament had no legislative authority over them. Claims for sovereignty varied between states, depending upon history and relationship with the crown. Some qualified as “full-powered states” with complete independence regarding internal administration, most importantly with the right to pass a sentence of capital punishment.Footnote ¹⁵ The power of a state in extradition matters, import and export duties, and the right to try Europeans are indicators of sovereignty that varied by state.Footnote ¹⁶ Thus, the Indian states constituted a unique imperial formation by virtue of, to borrow Stoler's words, “gradated variations and degrees of sovereignty.”Footnote ¹⁷ The plural sovereignties that constituted princely India find expression in a rich repertoire of concepts that historians use to signify them. For example, Lauren A. Benton calls the Indian states “Quasi-Sovereignties” so as “to encompass a number of terms used to describe arrangements of shared or limited sovereignty, including semi sovereignty, paramountcy, protectorates and indirect rule” (italics original).Footnote ¹⁸ Benton argues that the delegation of legal authority through indirect rule resulted in contests over the meanings of power and sovereignty between the British and Indian states.Footnote ¹⁹ These contests arose precisely because such delegations of authority resulted in layered sovereignties with indeterminate boundaries. The sovereignties of the British and the states overlapped and clashed.

In her study of Baroda, Benton illustrates the indeterminacy of imperial law as articulated through paramountcy. Any attempt to textually codify political law in states was met with resistance from both the parties. The British view was that defining paramountcy would limit its scope and constrain its intervention in unforeseen matters. Conversely, the states thought that it was only through leaving their exact legal relationship with the paramount power undefined that could they (extraconstitutionally) negotiate with the British. They also thought it in their interest to leave the paramount power undefined, as this allowed the latter to meet the treaty obligations to the states, even in unforeseen circumstances.Footnote ²⁰ The continuation of personal rule in the states was one such obligation of the paramount power.

Political law emerged out of practices relating to the sovereignty of the states in a variety of matters and applied to the states alone. Political law constituted a special form of imperial jurisprudence in which treaties, customs, usages, and sufferance were seen as legally binding, even as the authority emanating from them was not justiciable in any courts of law. In other words, political law was neither municipal nor public law, nor was it international law. The arbiters of political law were the officers of the Indian Political Service (IPS) who were the residents and agents in various states. The undefined character of political law lent itself to various contestations between the British and the states, and constitutes a rich part of imperial constitutionalism (or the legal relationship between the states and the British). However, much of the histories of Indian constitutionalism do not include it, as they all start with the drafting of the constitution of independent India.Footnote ²¹ Despite the fact that many of the provisions of GOI Act (1935) were added to the constitution of free India, historians paid little attention to the Indian states and their constitutionalism, a significant omission as the GOI Act (1935) devoted two thirds of its articles to these issues.

Upendra Baxi, a prominent scholar on Indian constitutionalism, considers “colonial constitutionalism” a form of “mercantilist despotism marking the flow of accountability obligations upwards/vertically among a predatory class of merchants.”Footnote ²² Here, colonial constitutionalism comes across as a generic form of colonial law with no special characteristics in India. Baxi argues that Indian constitutionalism is marked by the integration of princely states into India through the cancellation of the Indian Independence Act (1947), which restored sovereignty to them. Hence, for India, the choice between federal and unitary forms was “constitutionally constrained.”Footnote ²³ I read this as arguing that the divisible sovereignty that characterized the Indian states in precolonial/colonial India is not a feature of Indian constitutionalism. Its extinction in a nation-state predicated on unified sovereignty rather marks Indian constitutionalism. Although I do not deny the latter, a history of Indian constitutionalism is incomplete without incorporating political law and imperial constitutionalism.

In a way extending Baxi's claims, Uday Mehta argues that a conspicuous feature of twentieth century constitutionalism is the emphasis placed on national unity and identity.Footnote ²⁴ Indian constitutionalism marked a break with the past: “Indian constitution does not emerge from history as it emerges in opposition to history with a firm view of the future.”Footnote ²⁵ The Indian constitution was thus dictated by concerns of the present: national unity to which even freedom was secondary. The real revolutionary nature of the Indian constitutionalism lay in its disavowal of fissiparous tendencies in favor of national unity centered on a constitution that lent absolute political power to the state.

Contra Mehta, I argue that far from being centered on national unity or identity, Indian states advocated a federation that relied on a multiplicity of identities and, thereby, a plurality of sovereignties. The constitutional history of divisible sovereignty is as much about Indian constitutionalism as the debates and imaginations surrounding the drafting of independent India's constitution. I distance myself from any history that claims unity of the Indian nation a priori as well as any constitutional history that points toward the making of a single constitution.Footnote ²⁶ Many princely states had their own constitutions and did not see themselves as being written into the nation-state through a centralized/national constitution. Being part of the nation-state not only entailed the surrender of their sovereignty but was also disavowal of their age old Indian tradition of governance: monarchical rule.

A new generation of scholars has revived the question of continuity between colonial enactments and the postcolonial Indian constitution. Rohit De argues that constitutions were a set of heterogeneous practices and expectations and not teleological succession of legislation.Footnote ²⁷ Arvind Elangovan argues in favor of non-national histories of the Indian constitution, an approach that takes into account global influences and various unresolved conflicts (as opposed to seeing it as a consensus document) that marked its making.Footnote ²⁸ These accounts do not make any reference to constitution making in the Indian states, nor do they consider the divisible sovereignty that characterized all colonial enactments, especially GOI Act (1935), as opposed to its excision in the postcolonial constitution. The Indian states, not under the legislative ambit of the British Parliament, still remain outside the ambit of Indian constitutional histories, in whose making they played no less a role. In 1947, the constitutionalism of the empire—that is to say divisible sovereignty—by which the states stood, was shunned. This shift in the new constitution of free India is hard to conceptualize when the princes are left out of the discussion.Footnote ²⁹

Overcoming empire by thinking through its constitutional categories was not unique to India. However, what is special to India is that such histories have yet to be written. For example, protracted decolonization in the French Empire generated alternative discourses about the postcolonial future of the colonies. Frederick Cooper persuasively argues that French colonies such as Senegal imagined their independence within the empire: to remain within the empire by virtue of a federation, and attain equality with the French. It was, Cooper writes, the divisibility of sovereignty that gave both African and French leaders the possibility of dismantling colonial empire without having to choose between French colonialism and national independence, between assimilation and separation.Footnote ³⁰ Different plans for federation and confederation in the French Empire were predicated on a conception of sovereignty that was neither territorial nor indivisible.Footnote ³¹ Michael Collins has called the postwar decolonization time a federal moment, when alternative conceptions of sovereignty were possible.Footnote ³²

In a similar vein, Gary Wilder's central argument in Freedom Time is that French African leaders such as Leopold Sedar Senghor were willing to have self-determination without state sovereignty. To Wilder, alternative conceptions of sovereignty—or what he calls disaggregated sovereignty—are key. Wilder's arguments for “deprovincializing Africa” and “deterritorializing social thought” emanate from his engagement with postcolonial theory. He argues that empires were translocal spaces where people thought globally.Footnote ³³ The parallel that one finds in the imagination of a French federation and an Indian one are substantial, not the least of which is divisible sovereignty. The federal moment is genuinely a transnational and global historical moment.

In the following two sections, I narrate two federal moments in late colonial India. The first moment saw the possibilities of using the imperial constitutional categories of divisible sovereignty and sovereignty of a state as inhering in its ruler as the organizing principle for a federation consisting of the British provinces and the Indian states. The constitutional discourses regarding responsible government in Travancore led by Sir C.P., having interlocutors in British India and London, provide a lens to capture this moment. The second moment comes post festum, after the passage of the GOI Act (1935), when these possibilities, I argue, were constitutionally enforced in the act. A key question debated at that moment in every state in India was the inherent sovereignty of the states and the difficulties in federating them with the juridically different British provinces.

III. The First Federal Moment

The first federal moment was truly transconstitutional in the history of the Indian states. This moment demonstrates how federation was an attempt to improve the empire by learning from constitutionalisms in other parts of the empire (as well as outside it). More importantly, it highlights the significance the states attached to the continuation of their sovereignty and its carrier—the ruler—in conceiving federation. I argue that the inseparability of the state from its ruler is the sine qua non of constitutionalism in the Indian states. The rights of the state and its ruler were inextricably linked. Therefore, the preservation of the Indian states could not be conceived without preserving their personal rule. Arguably, the most important constitutional discourse on these themes originated from Travancore and its Dewan Sir C.P. I use these discourses as a lens to flesh out the salience of this moment and the imperial constitutionalism that underpinned it.

The Indian princely states were early advocates of an Indian federation consisting of the British-ruled provinces and the Indian states. The states made their first systematic articulation of Indian federation at the three Round Table Conferences held in London in 1930–32. These conferences were called by the British government to debate constitutional reforms and chart a plan for the progressive realization of self-government in India. Kailas Narayan Haksar and Kavalam Madhava Panikkar, representing Gwalior state and Chamber of Princes, respectively, wrote Federal India in 1930. Federal India was written in a moment of transnational constitutionalism, when federation was accepted as an already existing form of political union in India and other parts of the British Empire.Footnote ³⁴ A spirit of constitutional learning within and beyond the empire characterizes Federal India, best evident in the constitutional eclecticism of its authors. They discuss in detail the Imperial German Constitution of April 1871 (the full-text of which forms an appendix) and federalisms in America, Canada, and Australia, among others.Footnote ³⁵ The authors discuss the American model only to conclude that the rights of the American states are artificial and not strengthened by local feelings and dynastic loyalties as in India. The Canadian and Australian constitutions were not seen as models either; in Canada, the rights of the provinces were granted (as opposed to original/inherent rights of Indian states) by the constitution itself; in Australia, federation was trammeled by the limits set on it by the Parliament. However, the German constitution appealed to the authors because of its imperial nature. Prussia negotiated independently with twenty-one German states to form a federation. Federal units were not alike, and each state could have a different relationship with the center as exemplified in the case of Bavaria.Footnote ³⁶

The nation-state did not appeal to the authors of Federal India, as it was alien to the constitutional categories of the empire they were familiar with: categories that allowed multiple sovereignties as opposed to a single and absolute sovereign called the nation-state. The federation they advocated resembled classic federalism in two fundamental ways: a central authority capable of holding together the federal units and autonomy of the units not infringed by the former.Footnote ³⁷ The sovereignty of the Indian states is central to Federal India. The states were sovereign entities that could choose the political form that would embed them. Respecting this right of the states could lighten the Indian constitutional problem. The authors advocated “the essential incompatibility of parliamentary government with federalism, which implies sovereignty in the constituent states.” They wanted “protection from the encroachment by an elected Lower House always claiming sovereignty as being inherent in the vote of the people.”Footnote ³⁸

When the Round Table Conferences ended in 1932, the prospect of constitutional reforms in India was imminent. The GOI Act (1919) had to give way to a more progressive act. The Joint Parliamentary Committee (JPC), appointed in 1933 to look into the revision of the Act of 1919, had substantial representation from the Indian states. Sir C.P. Ramaswamy Aiyar, then the constitutional adviser to the Maharaja of Travancore, was a member of this important committee. The recommendations of the committee, among others, resulted in the GOI Act (1935), enacted by the British Parliament, providing for an all-India Federation.Footnote ³⁹ The GOI Act (1935), a significant event in the federal imaginations of 1930s, was a product of imperial constitutionalism characterized by the ambiguity or interchangeability between the state and the ruler. The IOA identified the ruler as the only legal (sovereign) personality in the state, by recognizing the right of each state to enter into federation on terms set by the ruler.

The constitutional debates in Travancore on the sovereignty of the state and its locus in the ruler took place in the background of GOI Act (1935). In 1936, the Maharajah appointed Sir C.P. Ramaswamy Aiyar as the Dewan of the state to help the state to play its role in the impending constitutional changes in the country. He held this position until the integration of Travancore into the Indian Union in July 1947. Sir C.P. was a reputed constitutional lawyer and a highly regarded administrator in British India with experiences as the advocate-general to the Madras presidency and as a member of both the Madras governor's and viceroy's Executive Councils. Even though Travancore had had a representative assembly for half a century, the demand for full responsible government grew among political parties such as Travancore State Congress (TSC). TSC was not an antimonarchical party. It rather asked for responsible government under the aegis of the Maharajah. On February 2, 1938, T.M. Varghese made a private motion in the lower house demanding responsible government.Footnote ⁴⁰ The Dewan disallowed the motion on the grounds that it was not under the purview of the house to discuss the relationship between the state and the paramount power. The Dewan's statement delivered in the house in the presence of the British resident for Madras states, argued that the Maharajah could not divest himself of the undivided sovereignty in him as long as he was responsible to meet the treaty obligations to the paramount power: “But legally the position is what is defined in the treaty. In other words, the treaties of 1795 and 1805 … impose reciprocal obligations on the Ruler of Travancore and the British Crown. Legally, therefore it is not possible, without the active concurrence of the British Government, for the Ruler to divest himself of his undivided authority and jurisdiction over the governance of the state in favor of any another authority.”Footnote ⁴¹ He then went on to quote the Indian States Committee report of 1928–29 that the promise of the king emperor to the princes also included a “duty to protect the prince against attempt to eliminate him and to substitute another form of government.” In support of his argument, he explained that if the state were to have a fully responsible government, accountable only to the legislature, and if that government voted to prevent any of the treaty obligations of the Maharajah (e.g., export or import obligations), then it could result in a stalemate. In such circumstances, he argued, the ruler could discharge his responsibilities only if he had the final residual power in his hands.Footnote ⁴²

Sir C.P. did not rule out that, in the course of time, the paramount power might enter into contracts or treaties with the people of the state, treating the ruler of the state as a constitutional monarch and thus dealing with the elected premier of the state. He argued that at the present moment, according to the treaties, that could only be done by an act: a consensual act of the Maharajah and the paramount power.Footnote ⁴³ His main contention was that the treaty obligations between the British crown and the Maharajah were “personal” in nature to the extent that they were binding not only on the rulers, but also on their successors.Footnote ⁴⁴ In other words, he argued for the incompatibility of responsible government with imperial constitutionalism, constituting the relationship between the states and the paramount power, a prerequisite of which was personal rule in the states.

Whether the ruler of a state could unilaterally divest himself of powers and thereby abjure his treaty obligations posed new constitutional anxieties. Sir C.P.'s argument that such a situation was outside the constitutionalism of the empire drew attention in India and London. For example, state leaders such as Sir Shanmukham Chetty and Sardar Panikkar argued that the questions Sir C.P. posed were not insurmountable. Chetty had introduced reforms toward democratizing Cochin in his capacity as its Dewan. He argued that the impending federation should hasten the introduction of responsible government in the states.Footnote ⁴⁵ Panikkar, on the other hand, argued that a ruler could not be held responsible for his obligations after he had divested his powers through constitutionalization. The discussions in London had a different effect. On February 21, 1938, in the House of Commons, Captain Heilgers asked the under secretary for India the response of His Majesty's government (HMG) to Sir C.P.'s statement that “the power of the ruler of an Indian State to grant measures of responsible government is restricted by the necessity of obtaining the explicit consent of the Paramount Power.”

Earl Winterton replied that ordinarily the paramount power only tendered advice on consultation by the state and “did not intervene in the internal administration of full-powered states.” He further said that “[it] would certainly not obstruct proposals for constitutional advance initiated by the Ruler. The consent of the Paramount Power has not been required before such advances have been approved by various Princes, nor, so far as I am aware, has it been sought in such matters.”Footnote ⁴⁶ Winterton's comment was construed as the official policy articulation of the British government, and hence it was argued that there were no constraints on reforms in the states. However, what it did not say was whether the ruler of a state could actually divest himself of the authority in him so as to relieve him of the treaty obligations to the paramount power. This constitutional question continued to fester. To clarify further, on December 16, 1938, Sir John Wardlaw-Milne asked another question in the Commons: “in what way the attitude of HMG towards the constitutional reforms in Indian states has been modified?” Colonel Llewellin replied that HMG fully adheres to the policy statement of February 21 and “have no intention of bringing any form of pressure to bear upon them to initiate constitutional changes; it rests with the Rulers themselves to decide what form of government they should adopt in the diverse conditions of Indian States.”Footnote ⁴⁷

Col. Llewellin's statement threw the ball back in the rulers' court, recognizing them as the ultimate arbiters of reforms in the state. The constitutional anxiety with regard to the compatibility of treaty obligations and responsible government in the states continued to engage the attention of policy makers, evidenced by the question posed by Graham White on April 6, 1939 in the Commons. He asked, “If HMG are satisfied that their policy with regard to constitutional changes initiated by the rulers of the Indian states adequately safeguards the continued fulfillment by rulers of their obligations to the paramount power?” Lt. Col. Muirhead replied: “The policy as indicated in the reply on 16 December … is not to be taken as implying that the paramount power would recognize a ruler as having endowed any constitutional body which he may create with a greater degree of authority than that which he himself is recognized as possessing. No state would be regarded as relieved of its obligation to the paramount power by the fact that its ruler had divested himself of the control necessary to discharge them.”Footnote ⁴⁸

These three statements, if shown graphically, progressively ascend toward the legal indispensability of the ruler for the sustenance of the imperial relationship. They also unambiguously assert that the rulers were the only source of authority in the states. These pronouncements took place at the time of growing demand for constitutionalization in the states as a precondition for their federation. Sir C.P. himself had been a staunch advocate for the reforms, and presided over one of the most constitutionally progressive states in colonial India. It may be concluded that delegation or divestment of authority did not relieve a ruler or the state from obligations to the British. As the statement of April 6 makes clear, the extent of the powers of the ruler was the measure of the extent of the powers of the representative government in the state. Thus, legally, the state and its ruler were more entangled through these policy pronouncements.

I deploy Sir C.P.'s arguments as an analytical lens through which to narrate the rich history of imperial constitutionalism and recuperate it as part of Indian constitutionalism. The discourses Sir C.P. took part in, as is clear from previous discussion, engaged interlocutors at all levels in the empire. This discourse was by no means new; it was coeval with the beginnings of treaty relations between the Company and the Indian states. Most of the treaties that the British entered into with the states were between the English Company on behalf of the British crown and the ruler of the state. The onus of the treaty lay in the individual ruler, and it extended to the state only insofar as the ruler represented the state. Likewise, the British were obligated to preserve personal rule in the states. Imperial constitutionalism constituted a unique form of imperial domination over the states, wherein both the British and the states had obligations to each another, yet the former could dominate the latter in view of their superior position. It differed from the direct political control that the British had over the provinces also known as British India. This indirect domination over the states was predicated on indeterminate and ambiguous constitutional categories generated by the British. The inability to constitutionally differentiate the state from its ruler was one such ambiguity.

The Indian states did not fully fall under the tenets of international or municipal law. The constitutional law of the empire governed them. The imperial law that applied to the states was neither written nor consistent; it changed with the requirements of time and space. The treaties that guided the legal relation between the empire and the states were interpreted according to the principle of Rebus sic stantibus. Under this, “every treaty is understood to apply only so long as the circumstances contemplated by it continue to exist”.Footnote ⁴⁹ This meant that the treaties could not be interpreted in accord with the original conditions of their making. In other words, even though states such as Travancore entered into treaty relationship with the British as equals, they were now subordinate to the British. This fact guided the functioning of the treaty.

The conception of sovereignty of states as inhering in their rulers is central to the conception of an Indian federation as promoted by the states and legislated by the British in 1935. Kadayam Ramachandra Ramabhadra Sastry considered Sir C.P.'s stance that the ruler of the state was the only legal entity responsible for the treaty obligations to be “a bare technical proposition in law” that would “lead one into a dexterous cob-web of legalism.” Even as he agreed that “in a narrow legalistic view, the proposition taken by Sir (C.P.) Ramaswamier is correct in the face of existing treaties,” he called for “practical statesmanship” to surmount legalistic hurdles and pursue the line of Winterton's statement.Footnote ⁵⁰ This mismatch between the political realities of the time and the actual legal position of the states seemed, theoretically, insurmountable to Sir C.P. He only imagined of overcoming imperialism chiefly on its own terms; that is to say, through the federation of the empire. Anticolonial pragmatism was alien to his way of thinking.

Sir C.P.'s constitutional discourses in Travancore were an exercise in imperial constitutionalism, whose origins are coeval with the beginning of treaty relationships between the state and the British. Also, the GOI Act (1935), one of the longest constitutions ever enacted by the British Parliament, was shaped by imperial constitutionalism.Footnote ⁵¹ I argue that this is most evident in its predication of divisible sovereignty and its recognition of the sovereignty of the state as inhering in the ruler. The GOI Act (1935) devoted ten schedules and 321 (out of 428) sections to explicate the relationship between the British and Indian states and their roles in the federation.Footnote ⁵² The fact that the constitution of independent India borrowed heavily from the GOI Act (1935) makes it all the more important that this legal relationship be read as part of Indian constitutionalism.

For federation to be realized, Article 5(2) of the act stipulated that at least half of the states be represented in the Council of State, and at least 50% of the aggregate population in the states be represented in the lower house/federal legislature.Footnote ⁵³Also, each federating state could execute its own IOA, stipulating the rights and privileges that it was willing to delegate to the federal authority and those that it wanted to safeguard without any external/federal trammels. The draft IOA that accompanied the 1935 Act, with slight modification, was used to accession the Indian states in 1947, a central problem that this article will address later.

“Federation under the Crown,” provided by the1935 Act, was largely predicated on the willingness of the states to federate. The reason why Sastry thought that Sir C.P.'s narrow legalism was “technically right” was because Sir C.P., a reputed constitutional lawyer associated with the making of the 1935 Act, knew precisely how the act gave legitimacy to the fact that the sovereignty of the state rested in its ruler alone. He maintained this position in various speeches. As per the provisions of the 1935 Act, this was an exact reading. Section 6(1) of the act stated: “A state shall be deemed to have acceded to the Federation if His Majesty has signified his acceptance of an Instrument of Accession executed by the Ruler thereof, whereby the Ruler for himself, his heirs and successors—(a) declares that he accedes to the Federation as established under this Act.”Footnote ⁵⁴

Section 6, running into pages, explained in different terms that “an Instrument of Accession (IOA) or supplementary instrument shall not be valid unless it is executed by the Ruler himself.” It was also incumbent upon the governor-general of India to protect the “rights of the Indian state and rights and dignity of the ruler thereof.”Footnote ⁵⁵ On the basis of Sections 6, 14, 101, and 125 (among others), Sir C.P. pressed home the point that “the ruler of an Indian state is alone the person who is a legal entity.”Footnote ⁵⁶ The act left the ruler of the state in complete freedom to tailor the IOA in tune with the rights and privileges of the state. The crucial section of the draft IOA laid down in the British Parliament in March 1935 reads thus: “And whereas the act cannot apply to any of the territories of A.B.(ruler) save with his consent and concurrence. And whereas A.B., in the exercise of the sovereignty in and over X. (state) in him vested, is desirous of acceding to the said Federation.”Footnote ⁵⁷ The actual IOA used to accession the states into either union in 1947 was the same.

If the treaty obligations of the states were such that they could be delegated and divested off by a ruler in favor of another or a group of people, then it would seem possible that such evasions might have been a potent form of resisting the empire. Such an eventuality was not possible, however, because “indeterminacy,”,the feature of imperial constitutional law, left the distinction between the state and the ruler unclear. In states such as Travancore, where the only incidence of imperial domination was through treaties, the form of domination mattered as much as the actual fact of domination itself. This form of domination was legalistic, but could also be political, when the legalistic terms were unclear. The minutes of the Governor-General's Council on the succession dispute in the Rajputana state of Kerowlee conducted in the British Parliament shows the ambiguity as well as the interchangeability of the terms ruler and government. In the English version of the treaty, Article 1 reads “the Rajah of Kerowlee and his descendants & c,” whereas in Persian translation, it reads “between the two Governments from generation to generation forever.”Footnote ⁵⁸ This ambiguity was not just in translation but also in policy matters. Sir F. Currie, member of Governor-General's Council, argued that the treaty was not entered into between the Rajah and the English Company but between the state of Kerowlee and the Company. It was thereby argued that the Company had responsibility to ensure the continuance of the state and not annex it. The decision was ultimately not to annex the state. The fundamental feature of Indian states was personal rule. The state could not continue without its ruler. Therefore, the juridical continuity of Indian states was predicated on the fact that they remained under a ruler who was subordinated to the British crown.

IV. The Second Federal Moment

The early arguments for Indian federation took place primarily in the context of constitutional reforms debated at the Round Table Conferences of 1930–32, and continued through the constitutional debates regarding the making of the GOI Act (1935). The second federal moment came post festum, after the passage of the act. In this moment, federation as a political form for the postcolonial Indian state not only had a constitutional basis, but also, as I argue, became a trope to unite the nation. States such as Travancore saw demands for national unity and divisible sovereignty as not mutually exclusive. Arguing for one without the other was to put the federation in an eternal limbo. The fundamental constitutional anxiety of the states at this moment was about their sovereignty and the challenges that federating with the British provinces entailed to their sovereignty. The states rejected an Austinian conception of sovereignty, which had no basis in imperial constitutionalism, so as to enable the federation to accommodate alternative sovereignties of the federating units.

The federation legislated by the 1935 Act could materialize only, as I have suggested earlier, if at least half of the Indian states federated. States individually, as well as wholly, were concerned that federation should guarantee their internal autonomy and dynastic character. The urgency for constitutional reforms in the states entailed by the impending federation left states in between the proverbial Scylla and Charybdis: demand for constitutionalization within the state and the prospect of losing sovereignty through federating. The demand for reforms in the state continued until 1947, although British policy toward it continued to be ambiguous as observed before.

K.N. Haksar, coauthor of Federal India, in a speech in 1937, said: “I feel that in federation not only the states will have the opportunity which they never had before, but also because in federation, India as a whole will have the best chance of unity, development, and progress.”Footnote ⁵⁹ He called for willingness on the part of British India to address the concerns of the states with regard to their administrative and financial autonomy in the new federation.Footnote ⁶⁰ Haksar's speech happened at a time when negotiations between the states and the British concerning the terms of accession had been going on without any end in sight. He argued that “the states would be better off in a federation than they have been during the period (from 1860 onward up to now),” but such a federation would have to respect the “real sovereignty” of the states. As an early advocate of federation, he concluded optimistically: “my faith in federation remains, and I have many bases for that faith.”Footnote ⁶¹

Haksar's call for the unity of India and the demand to recognize the sovereignty/ies of the states are crucial for our purposes. For him, the unity of India and multiple sovereignties within a federation were not antithetical. The states' imagination of a postcolonial order, as will be discussed in the remainder of this article, increasingly accommodated national unity and multiplicity of sovereignties. The second federal moment witnessed a wide proliferation of writings on the yet-to-be-real Indian federation. For example, Shafa'at Ahmad Khan, in his massive treatise on federation, wrote that federation encompassed the diversity of India the best. He considered federation as a means to enhance unity and provincial autonomy.Footnote ⁶² Taraknath Das, a revolutionary and one-time Columbia University professor, although against sovereignty of the states, demanded a federation—a United States of India—to preserve the unity of India.Footnote ⁶³ Likewise, Rama Varma of Cochin called for an Indian federation that would accommodate all its differences without losing its character.Footnote ⁶⁴

A central question in most of these writings is whether the states are intrinsically sovereign, and if so, what is entailed in federating them with the nonsovereign British provinces. States argued that they were inherently sovereign, as opposed to provinces, which only had powers delegated to them by the British government. Varma writes: “The British India constitutes a unitary state, the administrative control of which is by law centered in the secretary of state, who exercises all powers; all the powers that provinces have are delegated from this central authority and subject to control. Hence the provinces have no original or independent powers or authority to surrender.”Footnote ⁶⁵ He goes on to argue that the states, on the other hand, would delegate their powers to the center; in other words, the powers that the British had over the states were only those that were delegated by them through treaties. Unlike the provinces, the states did not fall under the legislative ambit of the British Parliament. Also, a state's accession to the federation could only be done bilaterally: with the consent of both the ruler and the British government. The provinces were not left with such choices.Footnote ⁶⁶

By contrast, it is precisely for these reasons that Bhimrao Ramji Ambedkar thought that federation would not bring national unity. He was pessimistic that all the states would join the federation and doubted they could be compelled to do so. Ambedkar unambiguously argued: “The territory of British India being vested in the Crown, the sovereignty over it belongs to the Crown and the territory of an Indian State being vested in the Ruler of the State the sovereignty over the State belongs to the Ruler of the State.”Footnote ⁶⁷ As a constitutionalist, he was aware that the GOI Act (1935) had positioned the states unfavorably over the provinces by virtue of their inherent sovereignty, best evidenced by the fact that the former could secede whereas the latter could not. Moreover, the states, as opposed to the provinces, could choose the incidence of federal powers on them through instruments of accession. On the one hand, Ambedkar called for equality between the states, which differed from one another, and the provinces, as units of federation.Footnote ⁶⁸ On the other hand, Haksar thought that the units of the federation need not be equal to one another. States and provinces could live on with their respective powers, although in federation. As he observed, “the provinces are elevated to the position of sovereign states as a matter merely of constitutional parlance.”Footnote ⁶⁹

In all these debates, the central question of sovereignty of the states was about the divisibility of sovereignty and whether the federating states retained powers that were not delegated to the central government. The states always maintained that that was the sine qua non of the federation that they advocated and the British legislated. Federation should entail the transfer of a share of sovereignty to a central body by self-governing autonomous units.Footnote ⁷⁰ The powers that each ruler would delegate to the center varied according to the sovereignty of each state, although there were an irreducible number of areas that they had to concede, including defense, foreign relations, and communications. Sir C.P., an early advocate of federation, did not foresee all Indian states staying independent. Rather, he advocated that the smaller states should combine and form fifteen to twenty units, and that a similar number of units from British India would form the federation together.Footnote ⁷¹ Such a union of the states had to happen inter se, on the basis of territory, population, and revenue, among other characteristics, with the larger states approximating a federal unit on these counts, forming units themselves. There was no move toward combining smaller states into federal units, although that was advocated by the larger states. Therefore, the fact that a state had to enter the federation by executing an IOA that stipulated the powers it wished to retain and delegate, as provided by 1935 Act, remained valid.

The divisible sovereignty implicit in the 1935 Act is also revealed by a close examination of the text of the IOA. The IOA allowed states to choose which subjects (apart from federal subjects) they retained or delegated. This selective application of the IOA lends itself to an interpretation of divisibility of sovereignty. In addition, the IOA also recognized the sovereignty of the state/ruler and the central government in these matters as being mutually exclusive. As per the provisions of the act, states would continue to be supervised by the viceroy in matters not delegated to the central government.Footnote ⁷² Therefore, the matrix of sovereignties that the 1935 Act constructed was by no means Austinian. Rather, it provided for layering of sovereignties without the presumption of an absolute sovereignty from which all other powers emanated.Footnote ⁷³

It appears that the fundamental constitutional anxiety of the states was about the absoluteness of sovereignty. Das provides a classic Austinian interpretation of sovereignty in colonial India by arguing that the absolute suzerainty of the British over India after 1858 meant that none of the native/Indian states could have any independent sovereignty. According to him, the limitation on the sovereignty of the states “cannot be removed without a formal agreement or such an assertion as will remove Great Britain from the suzerainty of India.”Footnote ⁷⁴ This argument misses the fundamental principle that both the dominant and the dominated could have sovereignty.Footnote ⁷⁵ That is, an inferior power could still possess sovereignty even as it is subordinated to a superior power. The presence of Austinian positivism in these debates is of special significance. Positivist discourses are predicated on an essentialist reading of the colonial state as the absolute sovereign. This not only seems historically inaccurate, but also bespeaks ignorance of imperial constitutionalism. The hierarchical pyramid that the crown presided over, as mentioned previously, shows that the sovereignty of the crown is a function of its superior position in relation to the inferior Indian monarchs. One could rather argue that the locus of sovereignty in the states has a more Austinian resemblance than the states' relationship with the British. The American-modeled Travancore Constitution of 1946 did exactly the same by leaving the final powers of the state in the hands of the ruler. This, I argue, was an exercise in imperial constitutionalism.

V. American-Modeled Constitution: Quest for Federal Independence

Subsequently, I will trace Travancore's shift from federal independence to complete independence through an analysis of the American-modeled constitution (1946) authored by Sir C.P. This shift, I argue, was primarily the result of the increasing impossibility of an Indian federation that states such as Travancore had long advocated. The nationalist reluctance to accede to a federation with a strong center, but one that would still allow provincial autonomy, antagonized states such as Travancore. Travancore refused to forsake its historic sovereign claims at the altar of a nation-state that was not envisioned as a unified India. Imperial constitutionalist insistence on the sovereignty of the states as inhering in the rulers will have a climactic constitutional and political instantiation in the IOA drafted to accession the states into the postcolonial nation-state. Such a reformulation helps us rethink accession and postcolonial transition not only in terms of nationalism and political realism, but also in terms of conservative/status quoist ideologies as exemplified in imperial constitutionalism.

Travancore's decision to remain outside of the Indian Union in 1947 was dictated equally by the failure of the federal scheme and a desire to preserve its centuries-old independence. Travancore was never conquered or ruled by a foreign power. In 1723, it became the first Indian state to have a treaty with the English Company.Footnote ⁷⁶ Allied against the threat posed by a common enemy, the neighboring state of Mysore, the Company and Travancore entered into a treaty of “perpetual friendship and alliance” in 1795, revised in 1805.Footnote ⁷⁷ The 1805 treaty remained as the only legal instrument that governed the Company's, and later the British crown's, relationship with the state until 1947, even though it was never amended. References back to the treaty of 1805 constituted a constant refrain on the part of Travancore in constitutional debates regarding federation. The state claimed that the only relationship it had with the British was a treaty into which it entered as a sovereign power. Therefore, once the British left, the state argued that it could choose its postcolonial future as well as its constitutional form.

The ruling dynasty of Travancore claimed hundreds of years of unbroken rule, going all the way back to the Cheras. This dynasty came from a family of enlightened despots who excelled at providing Western education and looking after the general welfare of the people. Travancore had a legislative assembly as early as 1888, one of the first of its kinds in the states. The constitutional history of Travancore presents a rich history of progressive social and political legislations under the aegis of monarchical rule. What brought Travancore, a state that stayed aloof from the Chamber of Princes, the all-India organization of princely states, to the center stage of constitutional debates in India was its association with Sir C.P., who had been the constitutional adviser to the Maharaja since 1931. Sir C.P., a constitutional lawyer sought after by many states to represent them in federal negotiations, was a member of different committees that went into the making of the GOI Act (1935).Footnote ⁷⁸ In 1936, he became the Dewan of Travancore, a post he held until its integration into the Indian Union in 1947.

As of 1944, Travancore had a population of 6,000,000 and an annual revenue of 385 lakhs British rupees.Footnote ⁷⁹ It far outstripped most other states and some provinces in India in social and economic development, and it had a larger population even than dominions such as New Zealand. A maritime state with international ports, Travancore had always enjoyed unencumbered trade relations with the rest of the world. Its coastal sands contained the richest deposits of nuclear minerals, such as monazite and thorium, not only in the British Empire, but perhaps in the whole world. Travancore continued to have a favorable balance of trade well into 1947. Consequently, it did not want to join an Indian Union that would neither be a federation nor one that would respect its economic freedom and political sovereignty.

The provisions of the 1946 Constitution, although rooted in imperial constitutionalism, are a rich example of transnational constitutional borrowing in decolonizing India. They were steps forward in the line of constitutional reforms in the state, aimed at further constitutionalization of the monarchy, with which Travancore was at the forefront in India. This constitution is perhaps not only the sole state constitution in India modeled on the United States Constitution, but also perhaps the only one in a state that imagined itself to be an independent federal unit. The first official version of the constitution came out as a press communiqué and later, in the Travancore Government Extraordinary Gazette dated January 16, 1946, soliciting responses to it. The latter reads: “In view of the political and social developments that are taking place throughout the world, the pronouncements that have been made and the discussions that are proceeding as to the evolution of a constitution for India and in order to enable Travancore adequately to occupy its legitimate place in a united and self-governing India, while at the same time preserving the historical and constitutional traditions of this ancient state, His Highness intends to inaugurate constitutional arrangements.”Footnote ⁸⁰ As is evident from these lines, the constitution was to constitutionally equip the state to play its role as a self-governing federal unit. Travancore hoped to be a federally independent unit in united India despite the fact that such a possibility was becoming bleak. Having one's own constitution was the first step to federal independence. The legal basis of an Indian federation, if it could be realized, continued to be the GOI Act (1935). This in turn meant that state sovereignty instrumentalized through the ruler still had its legal basis, and helps in understanding how the retention of sovereign powers in the ruler of Travancore was in line with imperial constitutionalism.

The constitution provided for a bicameral legislature (with equal powers) under the aegis of the Maharajah.Footnote ⁸¹ It had authority over almost all matters, ranging from the budget to day to day administration, except in certain matters such as treaty obligations. Instead of a council of ministers, it provided for different departments administered by executive or administrative committees (six to ten such committees), each consisting of elected members (three or five) from either house.Footnote ⁸² The members of these committees could, however, be removed by a majority vote. The Dewan or the chief executive retained veto powers. A permanent executive, however, was obligated to implement the decisions of the legislature. The Dewan would not be elected, but rather appointed by the Maharajah, and was irremovable by confidence motions on any particular point. Also the Constitution provided voting right to all the people older than 18 years of age, and did away with communal electorates, unprecedented in India. The term of the legislature was to be 4 years.

This constitution stands as a unique example of constitutional justification for monarchy as a stable form of government in decolonizing India. Its main feature was its anti-Westminster ethic, wherein the residual powers of the state were vested in the ruler. The constitution fortified the imperial constitutionalist position that the ruler was the sole locus of authority in the state. However, respecting the times, the constitution was aimed at a gradual process of constitutionalization of monarchy. The dispensability of monarchy, perhaps the oldest of the Indian forms of governance, is a truism in nationalist narratives. In South Asia, there has hardly been an analysis of monarchy as a political alternative available to fashion postcolonial state building, even though states insisted on its continuance.Footnote ⁸³ The preservation of the monarchic form of government was central to the states, as this article has argued, because in imperial constitutionalism the states had no legal personality in the absence of their monarchs.

The last paragraph of the 1946 draft ran thus: “The position of the Dewan vis-à-vis the legislature and the judiciary will be approximated to that of the President of the United States, subject always to the rights, privileges and prerogatives of the Sovereign.”Footnote ⁸⁴ This approximation of the Dewan to the American president also gave the new constitution its American character.Footnote ⁸⁵

At the national level, with the beginning of the Second World War, federal negotiations were put on the back burner and were rarely revived. Provincial autonomy took off with the elections of 1937, but federation never came to fruition. By the end of the war in 1945, the prospect of decolonization was real. The states continued to insist that the postcolonial order had to be a federation either within or outside the British Commonwealth. With the victory of Labor Party in London, things took a new turn. Clement Attlee, the new British prime minister, announced that the British would leave India by June 1948. He sent a cabinet mission to recommend setting up a constituent assembly that would draft the future constitution of India. Clause 14 of the cabinet mission statement of May 16 stated that “Paramountcy can neither be retained by the British Crown nor transferred to the new Government.” Furthermore, it stated that the precise form the cooperation of the states with the provinces would take should be negotiated on an individual basis.Footnote ⁸⁶

The mission did not recommend the partition of India. It rather recommended that there should be a union of British India and Indian states with foreign relations, defense, and communications held in common. States such as Travancore would cling to this statement until its eventual integration into the Indian Union. Mahatma Gandhi argued before the cabinet mission that paramountcy should be transferred to the new Indian government and not lapse. Jawaharlal Nehru also insisted that the states should not be allowed to declare independence.Footnote ⁸⁷ The cabinet mission's decision to not transfer paramountcy was seen as a recognition of the sovereignty of the states.Footnote ⁸⁸ Sir C.P. vehemently opposed the partition of India and the demand for Pakistan. The possibility of uniting India through federation appealed to him more than dividing it on the basis of nation-states. Later historical developments seem very ironic because, whereas nationalists were resigned to the idea of having two nation-states, statesmen such as Sir C.P. insisted on national unity predicated on the federal independence of units. The nation-state was not constitutionally conceivable for states such as Travancore, as it did not allow the state to exist independently. Empire seemed a lesser evil in the face of the infringements that a unitary state would entail. States were invested in the unity of India precisely because this union would have to accommodate multiple sovereignties. The demand for separate nation-states by Muslims, Dalits, Tamils, Sikhs, and Pathans among others may be recalled here.

I argue that the disparity between “nation” and “state,” eloquently demonstrated by Faisal Devji, can be furthered by a discussion on princely states' demands for federation. Federation was to accommodate multiple jurisdictions/sovereignties and nationalities, without extinguishing multiple sovereignties, and not to make the nation into a (nation)-state with a unified and singular sovereign. Devji argues that “the ways of thinking about India's political future went beyond the merely administrative option between a federal and unitary state to question the category of nation altogether.” The idea of a nation consisting of multiple jurisdictions and autonomous regions spread across South Asia, as articulated by people such as Aga Khan, leaves the history of the Indian nation-state with its present territorial contours shallow.Footnote ⁸⁹

For the states, different, competing sovereignties in decolonizing India seemed inclusive in federation. Even though the cabinet mission assured the states of their integrity, the nationalists' stance that they had no independence only further alienated states such as Travancore from the national scene. Sir C.P. considered the Nehru-led nationalist camp hostile, with no intention of united action.Footnote ⁹⁰

On July 20, 1946, addressing the joint sitting of the legislature, Sir C.P. said that the states would join the Indian Union only if their independence were recognized. If the states were not able to negotiate the terms of their entry on a level of equality then they would not join the union. He argued that “the Indian states are intrinsically independent sovereign entities; the provinces are not; they are the creations of the British … if the provinces, according to the cabinet delegation scheme are to be given independence then the states are equally entitled to independence.”Footnote ⁹¹ For the sake of federation, the states were willing to give away parts of their privileges and prerogatives besides the federal subjects. However, he stressed that “the states will retain all jurisdictions, subjects and powers than those ceded to the union.”Footnote ⁹² Sir C.P. was still optimistic about the possibility of a united India, and argued that the states could not be forced to accept the Constituent Assembly's decisions if they were unrepresentative of the whole country. National events, however, steadily moved toward partition, thus upsetting the possibility of a single constituent assembly. The possibility of India remaining within the empire was slim. Furthermore, different quarters argued that the states would not be able to stay independent in the event of partition.Footnote ⁹³

The question of representation of the states in the Constituent Assembly revived the debates regarding the locus of sovereignty in the states.Footnote ⁹⁴ Speaking at the All India states people's conference in Delhi in June 1946, Nehru called for the constitutionalization of the states:

In a press statement issued a few days later, Sir C.P. argued that it was states' support that gave Congress bargaining power with the British. He rejected Congress's claim that paramountcy would transfer to an independent Indian government and said that if such transfer were at all possible, it must be through a composite Indian government consisting of British India and the Indian states.Footnote ⁹⁶ Sir N. Gopalaswami Ayyangar, former Dewan of Kashmir, said in his speech on the Indian states in the Constituent Assembly that sovereignty resided in the people of the state. On the extinction of paramountcy, the crown would have to cede sovereignty to the people.Footnote ⁹⁷ Sir C.P. replied that it was historically untrue to say that in Travancore sovereignty resided anywhere else than in the ruler. Conquered and consolidated by a long line of rulers, “the state was dedicated to the tutelary deity of the monarch, as whose representative the Maharajah reigns.” He went on to say that paramountcy can only lapse, especially for Travancore, as “the British never conquered and never assumed sovereignty over the state.”Footnote ⁹⁸ Ayyangar persisted in his argument that sovereignty vests in the people and that all power and authority should be derived from them. He also cited the South African Union Act (Art. 1) and the Weimar Constitution (Art. 1) as deriving power from the people.Footnote ⁹⁹

These debates have a special salience when understood through the analytical lens of imperial constitutionalism. Arguments for popular sovereignty in the states were little more than political statements. They had their basis neither in imperial constitutionalism nor in the 1935 Act, and the IOA used to accession states into a postcolonial Indian Union. For the states, constitutional categories of the decolonizing empire presented the possibility of a future that was not a radical rupture with their past. A radical rupture would entail the demise of their dynastic character and disavowal of centuries-old tradition of monarchical governance. They wanted a gradual change to constitutionalization that seemed possible only within the empire. Despite their quest for a status quoist (conservative) postcolonial order, states such as Travancore stood by their commitment to a united India presided over by a strong federal government with provincially autonomous units, even when the nationalists were too willing to divide the country.

In a press statement, Gandhi said that the states were free to have their own constitutions.Footnote ¹⁰⁰ The presence of one's own constitution is also reflective of independence. The abovementioned exchanges only fortified Sir C.P.'s stance with regard to independence of the states. Given Congress's continued hostility and with Pakistan a fait accompli, the possibility of an all-Indian federation had all but disappeared. Now, it was left to individual states to negotiate the terms of their entry into either union through IOA. Sir C.P. led Travancore's negotiations on the terms of its accession to the Indian Union. However, he soon decided to keep Travancore out of the Indian Union altogether. In a letter to Conrad Corfield, political adviser to the viceroy, on March 21 1947, Sir C.P. wrote: “Travancore does not wish to come into any union, which will not be a real all India union with a strong and effective central organization. Until and unless this union becomes a fait accompli, Travancore prefers to be an independent state or kingdom.”Footnote ¹⁰¹

Travancore's demand for independence in postcolonial India cannot be explained only by the failure of Indian federation. Rather, I argue that the rejection of an all-India federation and Travancore's decision to stay out of the Indian Union are closely related. The 1946 Constitution was an attempt to constitutionally imagine the state as a federal unit and, later on, as an independent state altogether. A. Sreedhara Menon argues that the subsequent drafts of the Constitution that came in January and April 1947 had been modified to reflect the constitution of an independent state. For example, the final version was modified to include army, navy, and air force, giving clear hints with regard to its independent defense and foreign policy. By April 1947, Travancore had for all purposes decided to stay out of the Indian Union.Footnote ¹⁰²

Travancore attaining independence on lapse of paramountcy was “technically plausible,” but such a decision would have been blind to reality.Footnote ¹⁰³ In other words, the tradeoff was between legality and political reality. Much has been said about the political reality and imperatives of the time, not least of which was the nation-state, but the nation-state was not the only form imagined for the postcolonial order in decolonizing India. The states did not want a nation-state that could not accommodate their differences and sovereignties. The imperative of the nation-state seemed unrealistic to them, as federation seemed the more viable political form to include the political and cultural diversity of India. Princely advocacy of federation, ironically, suggests how the accommodation of multiple sovereignties might have secured Indian unity as opposed to the nation-state, whose very birth sundered the nation in two, only to be split again in 1971.

Princely insistence on sovereignty of the states and their rulers was predicated on a constitutionalism that they both generated and were governed by. Imperial constitutionalism rendered the sovereignty of the states with its locus in the rulers a constitutional fact, as best evidenced by the GOI Act (1935). Debates regarding the sovereignty of the states between the Congress and the states were staged at a time when the nation-state was not the only alternative available beyond empire. Nor did it appeal to many quarters in decolonizing India. Congress's acceptance of Austinian sovereignty, embodied in the nation-state, marked a radical rupture with the histories of empire and the multiple sovereignties it accommodated. However, divisible sovereignty remained as a powerful way of imagining the postcolonial order in decolonizing India. Its constitutional instantiation is best seen in the GOI Act (1935) and the IOA. In order to accession the states into either union, despite the advocacy for popular sovereignty, the interim government led by Congress accepted the imperial constitutional fact that the ruler was the only legal personality in the state. The ruler's acceptance of the IOA was the only legal basis for accession. This is precisely the reason why Kashmir, a state with a majority Muslim population ruled by a Hindu ruler, could accede to India, and why that was a legal fait accompli in the eyes of international organizations such as the United Nations. Therefore, imperial constitutionalism itself was the only legal basis of states' accession to the postcolonial Indian Union and, by extension, the unification of India into a nation-state.

VI. Epilogue

The federal imaginings within the empire as a way of overcoming the empire were not unique to India. These imaginings were not only inter-empire, but also international, with two of the world's biggest modern empires—British and French—as their enunciative space. The political project of federation had its detractors within the empires, as it was not seen as a sufficient redemption from the empire. Samuel Moyn, in his critique of Cooper's account of federal imaginings of decolonizing the French Empire, notes that “ethical superiority” of the federalist alternative to the nation-state does not absolve one from demonstrating that it was “realistically” available.Footnote ¹⁰⁴ This critique is also relevant in accounts of federal imaginings of decolonizing India as well. A truly redemptive federation, ending the tyranny of colonialism, may have been a chimera. However, it appeared realizable to some sections in India, whose history and rationale I have narrated previously.

Nationalists in and out of Congress stood for the nation-state, which India did become; however, this does not in any way make the quest for federation by the states insignificant. As I have argued, the constitutional form of the nation-state of India itself was shaped by the imperial constitutionalism it shunned. The making of the postcolonial constitution and the makeover of colonial India, composed of multiple sovereignties, into a unified and singular sovereign nation-state, was an unprecedented event. Central to the constitutional and federal imaginings of princely states in decolonizing India were ideas of imperial constitutionalism, its categories of divisible sovereignty, and a conception of sovereignty that did not differentiate the state from its ruler. These very categories were in play in accessioning the states into the postcolonial Indian union. I have argued that the rise and fall of these federal imaginings of decolonizing India and the eventual eclipse of imperial constitutionalism are crucial in understanding how the postcolonial nation-state came into being.

Claims of nationalism and political reality are inadequate analytical categories to explain why some demanded the nation-state and others did not. The vitality of the Indian nation-state does not render its detractors redundant. Nor does it explain why some thought outside the rigid confines of the nation-state. The postcolonial nation-state did not leave its constituent units with any claims for territorial inviolability. However, provincial autonomy has always been a matter of debate in India. One of the first instances of the central government dismissing a popularly elected state government occurred in Kerala, which incorporated Travancore, in 1959. It is precisely this kind of interference in their internal affairs that the princely states sought to overcome by federating.

A postcolonial narrative of the Indian states' quest for federation makes the historic claims of the nation-state shallow by rendering them contingent. It recuperates alternative possibilities that confronted the nation-state in decolonizing India. Finally, it questions the epistemic amnesia characteristic of the histories of Indian constitutionalism. Competing sovereignties and the quest for a polity based on divisible sovereignty are central to the political thought in decolonizing not only the British Empire, but also the French. This article could point toward the utility of a comparative intellectual history predicated on non-national constitutional imaginings of decolonizing the French and the British Empires. A century of imperial constitutionalism qua constitutionalism in the states has the theoretical possibility of helping to conceptualize the federal imaginings and non-national political imaginings of decolonizing India. It also enables rethinking of the states' accession and transition to postcoloniality, as not merely a radical transition, but one predicated on the constitutionalism of the empire.

On August 15, 1947, India achieved independence and dominion status, although it was still theoretically within the empire. The states that acceded to either union had done so on the basis of the IOA and standstill agreements, with an assurance that they would be governed according to the terms of the IOA that each ruler had executed. For example, when Travancore acceded to the Indian Union in July 1947, it had only acceded on federal matters.Footnote ¹⁰⁵ The April 1947 version of the American-modeled constitution continued to be in effect. The ruler of Travancore continued to have special prerogatives, as provided in the American-modeled constitution, until its complete integration in July 1949.Footnote ¹⁰⁶

More than three decades later, in 1982, the moveable and immoveable assets worth several millions of dollars, recognized as the private property of the erstwhile Maharajah of Travancore under the 1949 covenant, were in dispute between the two branches of the royal family.Footnote ¹⁰⁷ The Maharajah argued that the assets were his personal properties, although they had not been acquired by him. The properties in question were those he set for himself while surrendering his sovereignty to the people in July 1949. In the end, the High Court of Kerala ruled in favor of the Maharajah: “On ascending the throne, the maharajahs exercised sovereign power, which had no limit except those the sovereigns themselves set on it by proclamations and regulations…The stand taken by Balarama Varma [the erstwhile Maharajah] in his written statement is that when he was the ruler of the state all the properties except those registered in the name of the strangers belonged to him and the suit properties belong to that category. In the absence of any other evidence to the contrary this case has to be accepted.”Footnote ¹⁰⁸

The only legal basis for Maharajah's claim was that he was the (only) sovereign in his state until 1949. As such, everything in it belonged to him. It was legally right by the categories of imperial constitutionalism and, needless to say, had no locus standi in postcolonial legal codes. However, it indicates how far imperial constitutionalism had seeped into postcolonial Indian constitutionalism, and renders the protracted transition to postcoloniality legible. It also points toward the imperative of recovering imperial constitutionalism and the political imaginings it enabled of decolonizing India, not the least of which was a unified nation that was not the nation-state.