BIRTH AND GROWTH OF INDIAN FEDERATION

There are five countries which are known in modern times to have adopted the federal form of Government. They are : (1) U.S.A., (2) Switzerland, (3) Imperial Germany, (4) Canada and (5) Australia. To these five it is now proposed to add the sixth which is the All-India Federation.

What are the constituent units of this Federation ? For an answer to this question refer to section 5. It says :

Proclamation of Federation of India

"5. (1) It shall be lawful for His Majesty, if an address in that behalf has been presented to him by each House of Parliament and if the condition hereinafter mentioned is satisfied, to declare by Proclamation that as from the day therein appointed there shall be united in a Federation under the Crown, by the name of the Federation of India,—

(a) The Provinces hereinafter called Governors' Provinces; and

(b) the Indian States which have acceded or may thereafter accede to the Federation; and in the Federation so established there shall be included the Provinces hereinafter called Chief Commissioners' Provinces.

(2) The condition referred to is that, States—

(a) the Rulers whereof will, in accordance with the provision contained in Part II of the First Schedule to this Act be entitled to choose not less than fifty-two members of the Council of State; and

(b) the aggregate population whereof, as ascertained in accordance with the said provisions, amounts to at least one-half of the total population of States, as so ascertained, have acceded to the Federation."

Leaving aside the conditions prescribed by this Section for the inauguration of the Federation it is clear that the Units of the Federation are (1) The Governors' Provinces, (2) Chief Commissioners' Provinces and (3) The Indian States.

What is the size of this Indian Federation ?

Many people when they speak of the Indian Federation do not seem to realize what an enormous entity it is going to be—

Population		Area	Units
U.S.A.	122,775,040	2,973,773	48 States plus 1 Federal Dist.
Germany	67,000,000	208,780	25
Switzerland	466,400	15,976	22
Canada	10,376,786	3,729,665	9
Australia	6,629,839	2,974,581	6
India	352,837,778	1,806,679	162

The Indian Federation in point of area is 3/5th of U.S.A. and of Australia and half of Canada. It is 9 times of Germany and 120 times of Switzerland. In point of population it is 3 times of U.S.A., 5 times of Germany, 35 times of Canada, 58 times of Australia and 88 times of Switzerland. Measured by the Units which compose it, it is 3 times larger than U.S.A., 6 1/2 times larger than Germany, 8 times larger than Switzerland, 18 times larger than Canada and 27 times larger than Australia. Thus the Indian Federation is not merely a big federation. It is really a monster among federations.

What is the source from which the Federation derives its Governmental Powers and Authority ?

Section 7 says that the executive authority of the Federation shall be exercised on behalf of His Majesty by the Governor-General. That means that the Authority of the Federation is derived from the Crown. In this respect the Indian Federation differs from the Federation in the U.S.A. In the U.S.A., the powers of the Federation are derived from the people. The people of the United States are the fountain from which the authority is derived. While it differs from the Federation in the U.S.A. the Indian Federation resembles the Federations in Australia and Canada. In Australia and Canada the source of the Authority for the Federal Government is also the Crown and Section 7 of the Government of India Act is analogous to section 61 of the Australian Act and section 9 of the Canadian Act. That the Indian Federation should differ in this respect from the American Federation and agree with the Canadian and Australian Federation is perfectly understandable. The United States is a republic while Canada and India are dominions of the Crown. In the former the source of all authority are the people. In the latter the source of all authority is the Crown.

From where does the Crown derive its authority ?

Such a question is unnecessary in the case of Canada and Australia, because the Crown is the ultimate source of all authority and there is nothing beyond or behind, to which his authority is referable. Can this be said of the Indian Federation ? Is the Crown the ultimate source of authority exercised by the Federation ? Is there nothing beyond or behind the Crown to which this authority needs to be referred? The answer to this question is that only for a part of the authority of the Federation the Crown is the ultimate source and that for remaining part the Crown is not the ultimate source.

That this is the true state of affairs is clear from the terms of the Instrument of Accession. I quote the following from the draft instruments :—

"Whereas proposals for the establishment of a Federation of India comprising such Indian States as may accede thereto and the Provinces of British India constituted as Autonomous Provinces have been discussed between representatives of His Majesty's Government of the Parliament of the United Kingdom, of British India and of the Rulers of the Indian States;

And Whereas those proposals contemplated that the Federation of India should be constituted by an Act of the Parliament of the United Kingdom and by the accession of Indian States ;

And Whereas provision for the constitution of a Federation of India has now been made in the Government of India Act, 1935;

And Whereas that Act provided that the Federation shall not be established until such date as His Majesty may, by proclamation, declare, and such declaration cannot be made until the requisite number of Indian States have acceded to the Federation:

And Whereas the said Act cannot apply to any of my territories save by virtue of my consent and concurrence signified by my accession to the Federation;

Now, therefore, I (insert full name and title). Ruler of (insert, name of Stale), in the exercise of my sovereignty in and over my said State for the purpose of co-operating in the furtherance of the interests and welfare of India by uniting in a Federation under the Crown by the name of the Federation of India with Provinces called Governors' Provinces and with the Provinces called Chief Commissioners' Provinces and with the Rulers of other Indian States do hereby execute this my Instrument of Accession, and hereby declare that subject to His Majesty's acceptance of this Instrument, accede to the Federation of India as established under the Government of India Act, 1935."

This is a very important feature of the Indian Federation. What has brought about this difference between the Indian Federation and the Canadian and Ausralian Federation ? For what part is the Grown the ultimate source and for what part is it not? To understand these questions you must take note of two things. First, the Indian Federation comprises two distinct areas : British India and Indian States. This will be clear if you refer to section 5. Second, the relationship of these two 'areas with the Crown is not the same. The area known as British India is. vested in the Crown while the area comprised in an Indian State is not vested in the Crown but is vested in the Ruler, This is clear if you refer to sections 2 and 311. 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.

You will now understand why I said that in the Indian Federation the Crown is the ultimate source for a part of its authority and for the remaining part the Crown is the ultimate source of authority of the Indian Federation in so far as British India is part of the Federation. The Indian Ruler is the ultimate source of authority in so far as his State is part of this Federation. When therefore section 7 says that the Executive Authority of the Federation shall be exercised by the Governor-General on behalf of the Crown it must be understood that Crown's authority which is delegated by him to the Governor-General in the working out of the Indian Federation is partly its own and partly derived from the Rulers of the Indian States.

What is the process by which the Crown acquires the authority which belongs to the Ruler of an Indian State ? The process is known under the Indian Act as Accession. This Accession is effected by what is called an Instrument of Accession executed by the Ruler of a State. The provisions relating to the instrument of Accession are contained in section 6(1). That section reads as follows :-

" 6. 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 for himself;, his heirs and successors—

(a) declares that he accedes to the Federation as established under this Act, with the intent that His Majesty the King, the Governor-General of India, the Federal Legislature, the Federal Court and any other Federal Authority established for the purposes of the Federation shall by virtue of his Instrument of Accession, but subject always to the terms thereof, and for the purposes only of the Federation, exercise in relation to his State such functions as may be vested in him by or under this Act; and

(b) assumes the obligation of ensuring that due effect is given within his State to the provisions of this Act so far as they are applicable therein by virtue of his Instrument of Accession."

It is this Instrument of Accession which confers authority upon the Crown in the first instance so far as an Indian State is part of the Federation and it is because of this that the Crowns Authority in and over this Federation is derivative in part.

This is the law as to the birth of the Federation. What is the law as to the growth of this Federation? In other words what is the law as to change? The law as to change is contained in section 6(1)(a). Schedule II and section 6(5).                               

Section 6(l)(a) makes it clear that the accession by a Prince, effected through his Instrument of Accession, is " to the Federation as established by this Act." Schedule II deals with future amendment of the Constitution. It declares what are the provisions in the Government of India Act an amendment of which will be deemed to affect the Instrument of Accession and what are the provisions an amendment of which will not affect the Instrument of Accession by the States.

Section 6(5) does two things. In the first place it provides that the Instrument of Accession shall be deemed to confer upon Parliament the right to amend these provisions which are declared by Schedule II as open to amendment without affecting the Instrument of Accession. In the second place it provides that although Parliament may amend a provision of the Act which is declared by Schedule II as open to amendment without affecting the Instrument of Accession such an amendment shall not bind the States unless it is accepted as binding by the State by a supplementary Instrument of Accession.

To sum up, the units of this Federation do not form one single whole with a common spring of action. The units are separate. They are just held together. For some purposes the position of the units cannot be altered at all. For some purposes alteration is permissible but such alteration cannot bind all the units alike. Some will be bound by it but some will not be unless they consent to be bound. In other words in this Federation there is no provision for growth. It is fixed. It cannot move. A change by evolution is not possible and where it is possible it is not binding unless it is accepted.

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(Kale Memorial Lecture)

Address delivered on 29th January 1939 at the Annual Function

of the Gokhale Institute of Politics and Economics held in the Gokhale Hall, Poona

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