Princely State “Jammu Kashmir” vis-à-vis Concept of Paramountcy

19 Jan 2018 23:52:26




[Among the 29 states of our country, constitutionally, the 15th state of Bharat, Jammu and Kashmir has been the most discussed state since Independence. Located in the northernmost part of Bharat, this strategically significant state is surrounded by countries like Pakistan, China and Afghanistan and has been in a vulnerable position. On the one hand it is called the “Heaven on Earth”, but on the other hand it has been the victim of mishandling of our statesmen. Much stress has been given on oral and written statements in relation to state of Jammu and Kashmir. The affairs of the State have not been seen through the prism of constitutional process and legal documents. It has created confusions and has deepened the controversies.]


Prior to the partition of 1947, the territory under the British dominion or British suzerainty in Bharat was controlled by two political groups, one was the British India directly under the rule of the Secretary of State from London, and the other was the Indian States governed by native princes, however, indirectly under the paramountcy of the Crown. The British India, having 60 percent of the land area of the sub-continent, comprised the provinces that were administered in all respects by the British Parliament through its nominated representative designated as Viceroy of Bharat. The Indian States ruled by native princes - Maharajas, Nawabs, Rajas and so on covered the rest 40 percent of the land area, containing 10 millions of the subcontinent's total of 400 million inhabitants. All the rulers of these Indian States owed allegiance to the British Crown. These States were indirectly ruled by British and were allowed governance in internal matters such as law and order, civil liberties, health, education and economic development. The State of Jammu and Kashmir was one of them.


Here we need to understand concept of 'paramountcy', which was evolved to rule the Indian (Princely) States. The principle of paramountcy was used frequently during the partition and integration of States. The first mention of paramouncty was found in the letter of Ochterlony to Metcalfe dated 21 March 1820. He writes about paramountcy “I hope His Lordship will in virtue of his power and paramountcy forbid all future invasions of Surhoie and fix himself a sum which the raja must take”. Further Metcalfe speaks of the fact of paramountcy by which British Government had itself the duty as supreme guardians of general tranquility. Thus we can say Metcalfe and Ochterlony had evolved the doctrine of paramountcy.


This doctrine was furher expounded for the first time in 1926 by the British Government and the Viceroy to define the relations between the British Crown and the Indian States. 562 units were recognized as States by Butler Committee and Simon commission including both big and small states. Paramountcy meant the relations between the Crown and the heads of the States (Princes) determined by treaties or engagements between the Crown and the Princes. 40 States had treaties with paramount power. Large number of states had some form of engagements or sanads, i.e., acknowledgement of concession or authority or privileges generally coupled with conditions proceeding from the paramount power. The status of remaining states was recognized by the Crown in some form or the other. There were no treaties ratified by any parliaments or legislatures. Therefore the treaties or engagements, etc on which these relationships were established were a kind of Charters between the British Crown and the Princes. These treaties established a privity between the Crown and the Princes, a privity of contract, a privity of relationship between them. of both the British India and the Indian States. The Crown was responsible for the defence of both the British India and the Indian   States.   The   functions   and   attributes   of  internal sovereignty of the States were duly recognized by the Paramount Power.



The position of the State territory and state subjects was the same as that of British territory and British subjects. States had no international life. Paramount Power had the exclusive authority to make war or peace or to negotiate or communicate with foreign states. Princes were required to give effect to the international obligations entered into by the Paramount Power. The Crown could intervene in internal affairs of the State (i) for the benefit of the Ruler of the State,

e.g. the suppression of the rebellion against a lawful sovereign, dismemberment of State (ii) for the benefit of Bharat as a whole, e.g the economic growth of Bharat, the prevention of gross misrule, checking inhuman practices or offences against natural law or public morality; or (iii) for giving effect to international commitments.



The persistent demand of Indians for 'swaraj' or 'self- government' led to the constitution of Simon Commission in 1927 which submitted its report in 1930. This report as considered at the Round table conference consisting of the representatives of the British Government, British India as well as the Rulers of the States. A White Paper was prepared as a result of this Conference which was submitted to the Select Committee whose recommendations led to the introduction of Government of India Act Bill which was passed as Government of India Act of 1935. The 1935 Act, which became effective somewhere around 1937, became the Constitution Act. This Act provided for the establishment of the Federation of Bharat comprising of the British India Provinces and such Indian States who would desire to join it. At the time of joining it, a Ruler of an Indian State had to sign an Instrument of Accession specifying the extent to which it consented to surrender its authority to the Federal Government. However, States could not sign the Instrument of Accession at that time due to some issues. However negotiations were going on between Princes and Britishers. But then time of Independence came closer and, the States continued under paramountcy till 1947.



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