1. Introduction
Throughout the British rule in India, the international status of the Indian princely states remained open to debate. The princely states that numbered about 562 in 1930 were called the ‘territories under the suzerainty’ of the Crown in British diplomacy and were often referred to as such in the treaties and conventions signed by the UK Government on behalf of India, signifying the international status of the princely states.Footnote 1 The states were not colonies or mandates but were seen as protectorates or vassals that professed allegiance and loyalty toward the British Crown through a subordinate relationship.Footnote 2 This subordinate relationship between two sovereigns, or a sovereign and quasi-sovereign, produced a rich tapestry of ideas about state, sovereignty, and what is local, national, and international in colonial India. The princely states constituted a quarter of the Indian land mass and a third of its population. The histories of British colonialism in South Asia most often paper over the dizzying array of political and legal disputes that constituted the British relationship with the princely states. These histories centerstage the perspective of the British provinces that the British directly ruled and where the colonial state existed, for the most part, without jurisdictional wrangling between colonial officials and traditional Indian elites. In historical accounts, the growth and consolidation of British rule in the provinces is often entangled with the growth of anticolonial nationalism.Footnote 3 Nationalism is the obverse of colonialism, so much so that the intermediate spaces between these two binaries have not been central to historical accounts.
It cannot be that South Asian intellectual and legal history can only draw its sustenance from the primary contradiction between colonialism and nationalism. The genealogy of this contradiction itself is born out of a Marxist worldview of what is political and what constitutes politics, where monarchies and traditional elites or areas that were imperfectly colonized were transposed into the precolonial.Footnote 4 The political and, lately, the legal in South Asia has come to accommodate the Dalits, women, tribes, and other socially and politically marginalized groups and ideas.Footnote 5 But the quintessential political group in India—Indian princely states—have yet to be drawn into the forcefield of the political and the legal, and the ways in which political and legal thought emerging from the princely states allow us to rethink the boundaries of the international remain largely unexplored.Footnote 6 Conceptual nuances, ideological motivations, institutions, history, and traditions that made up for the difference between princely India and British India, and how these differences produced a different form of colonialism, or more aptly imperialism, in the Indian states is only beginning to be understood in ways that fundamentally recast Indian political, legal, intellectual, and global history.
By disaggregating the British Empire as a geography of uneven territories and sovereignties, with differing levels of legitimacy and governance structures, we can see in what ways the imperial project in South Asia rode on the back of a seemingly international set of ideas and legality about what was a state, who was a sovereign, and who determined both in the British Empire. The legality of the British rule in India depended on the right of conquest.Footnote 7 The fact that the British conquered the territories of erstwhile princely states and made them over into British-ruled territories was upheld as ‘acts of state’ as per the tenets of international law. Acts of state were not subject to dispute in a municipal court, and in the nineteenth-century world, this meant acts of state were a fait accompli with no legal remedy. The emergence of the British as the arbiter of power in South Asia is a global phenomenon with legal nuances that far exceeded the bounds of colonial South Asia. Why did the tenets of international law become a constant referent for the British officials and courts of law in their relationship with the princely states? How did the disputes between Indian princes and British officials reveal conflicting worldviews about sovereignty, state, and law? More importantly, what does the history of international law in colonial South Asia show about its relationship with imperialism, and how did concepts of state and sovereignty informed by international law become a matter of dispute within India between anticolonial nationalists and princely states? In this review article, written in light of Priyasha Saksena’s book,Footnote 8 I engage with these questions and offer some answers.
Saksena’s book shows that the language of sovereignty was central to the debates on the legal and international status of the princely states. In these debates, sovereignty metamorphosed into a polysemic idea that was ‘manipulated, cannibalized, and reimagined’ by a range of actors in both princely and British India, like princely and British officials, lawyers, judges, and anticolonial nationalists. In mapping out these debates, Saksena shows how a divisible conception of sovereignty, best associated with Henry Maine, began to set the limits on legal and political articulations of sovereignty in princely India. The princely and British officials selectively appropriated the idea of divisible sovereignty and offered differential justifications in tune with their political goals. Saksena’s book could be situated on two axes. First, it is one of the first comprehensive accounts of the legal history of sovereignty in princely states and the international ramifications of not only princely sovereignty but also the British relationship with the states. The history and centrality of sovereignty that we read in her book suggests how important it is for South Asian and global historians to take princely states as not mere sites of conservatism and courtly politics, but also as sites of intellectual, legal, and global history. Second, her work should be read along with the growing attempt to highlight alternative international imaginations and practices that were often overlooked in Euro-centric histories of international law, which often presumed its subject as a society of equal sovereign states. As Edward Keene shows, an alternative history of international and imperial world order centered on divisible sovereignty, wherein European powers and theorists like Hugo Grotius saw sovereignty as divisible to establish and share public authority in non-European states.Footnote 9 Saksena goes a step ahead and gives us an in-depth account of the debates, controversies, and lasting consequences that came out of this European attempt to divide sovereignty in colonial India.
Two main arguments drive this article. First, the history of the Indian princely states and their imperial relationship with the British suggests an alternative chronology of the international in colonial India. That is, instead of seeing the international as arriving in the wake of European contact or as heightening during the period of colonialism and the newfound internationalism in the interwar and postwar periods, we see the international backsliding in India by the close of the nineteenth century. If Indian states for centuries enjoyed sovereignty and independence as members of a family of nations until the British started asserting their paramountcy, by the close of the nineteenth century, this independent status gave way to a dependent status, paving the way for an imperial as opposed to international status. Imperial and international are entangled categories, so much so that imperial constitutionalism took recourse to international law to justify the imperial project. In suggesting a move from international to imperial, as was also attested to by publicists like Westlake, I am not arguing for a phased history of the transition from natural law to positive law but for what I call ‘imperial-international’ that adequately captures what was international about the relationship between the British and princely states. The imperial-international shows how imperial projects often had to rely on international legal ideas and how imperialism was also about the ‘capability to determine the content of the political and legal concepts’.Footnote 10 The imperial-international is a politico-juridical formation that functioned through a dialectical relationship between the imperial and international. This formation helps us see how sovereignty, especially divisible sovereignty, was scripted in a language that intertwined imperialism with international law in service of empire.
Second, the debates about the applicability of international law to princely states were not only a legal or imperial debate but also a national debate. Like imperial-international, I advance another conceptual formation called ‘national-international’ to see the unique ways in which anticolonial nationalism wrangled with state sovereignty. This is again not an attempt to advance a stage history, or see international as coming after nationalism, or the move from positivism to pragmatism, but rather to underline the dialectical relationship between both as generating new discourses around the sovereignty and international status of the states in decolonizing India. The status of the princely states and the debates on their sovereignty, as Saksena shows, moved through multiple scales—local, national, and international. At the national scale, the anticolonial nationalists engaged in a tactic similar to that of the British imperialists—denying the international status of the princely states. Fearing that recognition of the sovereignty of the hundreds of princely states would only lead to the balkanization of India, Indian nationalists opposed the international status of the Indian states in the interwar period. Thus, the history of international law in colonial India is not just about the wrangles between the Indian princes and the British officials but also between the princes and the nationalists, who imagined future India to be a united democratic republic with a single source of sovereignty—the people. International law’s national and political limits are the obverse of the imperial-international. If imperialism defined where the law ended, and politics started on an imperial scale, nationalism and its specific political ethos performed a similar task on the national scale.
Taking a cue from Anne Orford and Florian Hoffmann, I see theorization of international law as a political act in a historically specific context.Footnote 11 While many accounts of the transition from natural law to positive law exist, the history of Indian princely states is far more complex than such a framework of transition might be able to capture. For one, the British did not denounce princely sovereignty as often as one would imagine in the nineteenth century, the heyday of colonialism and positivism. Rather, they took pains to establish princely sovereignty and then hollow out that sovereignty in political and legal battles with the princely states. Thus, the legitimacy of the colonial conquests ultimately depended on the fact that the princely states were sovereigns in the way European rulers were. This contradictory impulse of imperialism and international law is what I seek to capture in the framework imperial-international. Likewise, even as India’s, and particularly the princely states’, colonial status was internationalized in the early quarters of the twentieth century (for instance, through the League of Nations), the princely states continued to be denied that status by the anticolonial nationalists. If colonialism interjected the international status of the princely states in the nineteenth century, anticolonial nationalism was to perform that task in the twentieth century as suggested through the framework of national-international. Both colonialism and nationalism were exclusionary projects and sought differential legitimacy for doing so; but these exclusionary tactics, and the inherent marriage of contradictions that underpinned them, propelled the debates on the international status of the princely states in colonial India. It is that set of productive contradictions that I hope these frameworks allow us to capture.
2. From international to imperial: Historical context and Indo-European analogies
The international life of the Indian states is by no means of colonial provenance. India was a conglomeration of states for thousands of years, with some dominant states enjoying suzerainty over minor states while each state enjoying some form of dependence and independence. This was true of the grand old Mauryas, Guptas, Cholas, and the Mughals, who all presided over transnational empire states with a string of vassal states that owed allegiance to them. In this political terrain marked by the existence of numerous states, inter-state relations were best seen as ‘international’ rather than national or imperial. C. H. Alexandrowicz, a Polish legal scholar who joined the University of Madras as the first chair of the Department of International and Constitutional Law in 1951 and spent a decade in India studying the history of international law, was a major proponent of native sovereignty and the existence of the law of nations in the non-European world before the onset of European imperialism.Footnote 12 He argued that the treaties of native states with European trading companies should be read in tune with the history and circumstances that existed at the time of their making. It was historically and legally improper to retrospectively apply the present conditions (i.e., the supremacy of the European powers) in interpreting these treaties.Footnote 13 In large part, he was convinced of the validity of this view after the 1960 Rights of Passage Judgment by the International Court of Justice (ICJ) at The Hague.Footnote 14 The Portuguese government appealed to the ICJ for the right to move between their enclaves in Dadra and Nagar Haveli in western India to exercise their sovereignty over them. These Portuguese enclaves were acquired in the late eighteenth century from the Maratha Confederacy through a treaty in 1779. The court debated in detail about the legitimacy of the treaty only to conclude that the treaty was valid as entered between two sovereign powers. The final decision of the court did not uphold the Portuguese sovereignty over the enclaves, for the treaties only granted them revenue rights and not a direct handover of complete sovereignty over those territories.Footnote 15
This legal dispute between India and Portugal took place at a time of decolonization when erstwhile colonies were acquiring national independence. In India, this moment of postcolonial sovereignty did not lead to a renewed examination of Indian treaties with the British or recovery of the lost or residual sovereignty of the Indian states.Footnote 16 The princely states were, for the most part, forcibly integrated into the nascent Indian state, and the lapse of their sovereignty was central to the founding of independent India.Footnote 17 However, early writers of the history of international law in South Asia, like Nagendra Singh, a former judge at the ICJ, argued for the existence of inter-state relations between Indian states much like in Europe. Singh argued that there was universal application of inter-state law in ancient India.Footnote 18 Both India and Europe had their own versions of a society of states marked by the existence of independent states and suzerain-vassal relations. Many early writers of the law of nations, like Alberico Gentili, Hugo Grotius, and Emer de Vattel, viewed sovereignty as an attribute of independent states regardless of religious or geographical considerations. Grotius, who was involved in negotiating treaties with the Sultan of Johore in the early 1600s, argued that European treaties with non-Europeans were as binding as treaties within Europe.Footnote 19 Vattel’s writings in the eighteenth century brought to light the relationship between independence and sovereignty. He argued that every self-governing country was sovereign even when it was under protection or was in an unequal alliance.Footnote 20 As we will see, some English judges also relied on Vattel to argue that Indian states, despite their subordinate status, were sovereign states. As David Armitage has shown, the Declaration of American Independence drew on Vattel’s idea that in declaring independence, a state was declaring its sovereignty.Footnote 21 This idea of independence as the chief feature of sovereignty was also a commentary on the prevailing society of states that did not accept members through a process of recognition. This was also the main point that Alexandrowicz was at pains to prove: before the onset of high imperialism in the eighteenth century, states could declare their independence and enjoy sovereignty without recognition from other states.
Alexandrowicz saw the Congress of Vienna of 1815 as inaugurating a new era of the law of nations based on a well-defined conception of the society of states. He drew parallels between the Holy Roman Empire and the Mughal Empire in that both empires consisted of suzerain-vassal relations or a collection of states that owed allegiance to the emperor. In Europe, the dismemberment of the Holy Roman Empire led to a Concert of States, wherein states came together to organize their relations with one another with a view to preserving peace. In India, the vassal states, like the Marathas, declared their independence from the Mughal Emperor and fought against other vassal states to acquire dominance.Footnote 22 This anarchic conflict led to the dominance of the British, who treated and allied with rival states to promote their own political and commercial interests.Footnote 23 Eventually, by 1818, with the end of the Third Anglo-Maratha War, the British had become, for all practical purposes, the paramount power in India even though they owed allegiance to the Mughal Emperor well through the 1840s. This analogy between Europe and India is striking. The claim that India had similar inter-state relations as Europe before the ascendancy of the British shows an alternative history of the law of nations in India that can possibly be extended to two millenniums. In tracing the genealogy of the inter-state relations in India to a third-century text on statecraft like Kautilya’s Arthasastra, Alexandrowicz sought to pluralize the very category international as having multiple versions in places as discrete as India and Europe.Footnote 24 After the dissolution of the Mughal Empire, India saw the rise of imperialism rather than internationalism as the defining feature of inter-state relations. There was no Indian Public Law that grew out of an agreement between Indian states like the way European Public Law grew after the Congress of Vienna.
What strikes one the most about this recovery of Indian sovereignty and international legal order in precolonial India is the two contradictory ends to which the Indo-European analogy has been extended. This analogy was very central to the writings of John Westlake, one of the most influential publicists of the nineteenth century and a major detractor of the international status of the Indian states. Alexandrowicz’s comparison of the Mughals with the Holy Roman Empire is very similar to Westlake’s, though they both deploy these analogies to different ends: one to affirm the sovereignty and international status of the states and the other to disclaim that status. Westlake conceded that Indian states were independent and engaged in international treaties and alliances with other states in the Mughal Empire, but eventually, the internecine conflicts between them led to anarchy and the rise of British power. What differentiated Europe from this Indian fate was ‘the condition of chronic misgovernment and anarchy which ‘international society of the white race’ was not prone to as opposed to the Indian states.Footnote 25 Westlake credits the governor-generalship of Lord Hastings (1813–23) ‘as the turning point in the course of shifting the affairs of India from an international to an imperial basis’.Footnote 26 In this account, the British come as restorers of peace, initially bowing to the Mughals for legitimacy but eventually displacing the Mughals and becoming the paramount power, thereby preempting the development of a society of states in India.
Westlake’s writings on international law were informed by civilizational and geographical assumptions, so much so that he saw the white race as the legitimate subject of international law with some exceptions.
As the English law is the law of England and French law that of France, so international law is that of a certain part of the world, which comprises, if it is not exclusively composed of Europe, all nations outside Europe but European blood and Japan.Footnote 27
He engaged in debates with William Lee-Warner, a British official and the author of The Native States of India (1910), who argued for the international status of the states. Lee-Warner disagreed with Westlake’s argument that states properly belonged to the realm of constitutional law as the differentiation between the subjects of princely states and British provinces was a matter of domestic importance.Footnote 28 For Westlake, in a foreign country, the distinction between the subjects of princely India and British India was not maintainable.
Saksena presents us with a coherent and accessible picture of the formation of a body of imperial political thought in India through her engagement with the writings of British officials. As she shows in Chapter 3, some of the most important British officials of the political department (which managed the relations with the Indian states), like Charles Tupper and William Lee-Warner, were informed by Henry Maine’s theory of divisible sovereignty.Footnote 29 Lee-Warner thought that the absence of external relations did not deprive the states of their sovereignty, nor could it be said that the states came under the purview of municipal law. In most courts of law in England, Indian princes could not be sued and were declared independent sovereigns who were not amenable to the process. Lee-Warner was more attentive to the ‘sensitive and conservative’ nature of the Indian states and sought to avert controversies in India by diminishing their sovereignty. It was precisely this concern that led him to revise his 1894 book Protected Princes of India with a neutral title called The Native States of India. In this revised version, he called the states as semi-sovereigns instead of protectorates.Footnote 30
3. Divisible sovereignty and the making of imperial legality
In this section, I will examine up close some of the interventions in Saksena’s book and critically engage with Henry Maine’s theory of divisible sovereignty. The many, often contradictory, lives of the idea of divisible sovereignty in colonial India form the kernel of Saksena’s book. The book revolves around five moments or controversies that thrust the question of princely sovereignty centerstage. They range from British intervention and jurisdiction in the states (Chapters 2 and 3) to legal arguments about princely sovereignty and British paramountcy in the 1930s (Chapter 4) to the position of the Indian states in federal debates (Chapter 5) and decolonization (Chapter 6). In the second chapter of the book, she sets the stage by arguing sovereignty as a ‘bundle of rights’ that existed in tension with the growing British power. Her claim is that the assumption of paramountcy by the British did not extinguish debates about state sovereignty but rather engendered them in new ways.Footnote 31 In the nineteenth century, the princely states sought to counter the British incursions on their authority by articulating a territorial conception of sovereignty. In this conception, sovereignty had an indivisible and territorial character, wherein one territory connoted one law. Pushback against this unitary, territorial conception of sovereignty in the states lies at the heart of ‘jurisdictional jousting’ that informs the narrative arc of the book. One major area of jurisdictional conflict between the princely states and the British was in the realm of extraterritoriality, especially in trying foreign subjects for crimes committed within and without the state. As Saksena shows through the Liddell case, the British began to assert the right to try their subjects who were arrested in the princely states, leading to opposition from powerful states like Travancore.
In 1868, John Liddell, a British subject, was convicted of theft in Travancore. He objected to this on the ground that the state had no right to try a foreign, European subject. The advocate-general of Madras agreed with this claim, drawing a harsh response from T. Madhava Rao, prime minister of Travancore. Rao argued that criminal jurisdiction within the state territory was an inherent sovereign right guaranteed by the masters of international law like Henry Wheaton. Travancore also claimed that the treaty relationship with the British never explicitly provided for the cession of the legal right to try British or European subjects. These disputes led to the passage of the Foreign Jurisdiction and Extradition Act of 1871, which provided for the appointment of justices of peace to try European and British subjects.Footnote 32 However, the Act did not proscribe the states from trying British subjects, leaving it to be a political rather than legal question. That is, depending on the circumstances and the prestige of the state, the British might take a lenient attitude on this question as it did in the case of Travancore, which, at least theoretically, continued to enjoy the right to try British and European subjects under the supervision of the British Resident.Footnote 33
Saksena’s focus is not so much on showing how the British became the paramount political power in India but rather on the political and legal contests that punctuated the exercise of British paramountcy. The establishment of paramountcy was not a one-time event, but it had to be constantly asserted and reasserted.Footnote 34 It was in this context of jurisdictional conflict that the reorganization of the Kathiawar States (a group of Rajputana states in Western India in present-day Gujarat state) and their relationship with the British came up.Footnote 35 The Bombay government claimed the Kathiawar States to be British territory, for their sovereignty over these states had long been in place. In demurring with this opinion, Henry Maine argued that sovereignty in international law was ‘a question of fact’ and the mere existence of a claim of sovereignty or that it might have been asserted was not enough, but it had to be ‘in fact asserted’.Footnote 36 He pointed out that the Bombay government had never exercised sovereignty over the Kathiawar States and, in fact, the Court of Directors of the English East India Company had disavowed any claim for absolute sovereignty over these states.
Maine’s claim that practice was more important than theory in international law and that, in practice, the sovereignty over a state was divided between the British and the state concerned opened up a new way for ordering imperial relations in India. This division of sovereignty did not render imperial control vulnerable, for Britain enjoyed the major share of sovereignty. He famously argued that sovereignty was divisible, but independence was not, and there was only one independent sovereign in India, the British, just like there was one independent sovereign in the Holy Roman Empire, the Emperor.Footnote 37 While explaining his theory of divisible sovereignty, Maine equated Indian states with the ‘demi-sovereign states’ in the German confederation, to further clarify how division of sovereignty was a global practice not just confined to India.Footnote 38 What strikes one most about Maine’s formulation, aside from its strong impact and legacy in ordering imperial relations in India, is the provenance of this idea in international law. Much of Maine’s conceptual maneuver on this idea depends on his claim that sovereignty in international law is ‘a question of fact’. This, in turn, would mean that multiple perceptions about sovereignty were bound to exist in any context and an examination of the actual situation as to who actually exercised sovereignty over what was bound to differ from one state to another. Thus, even as the conception of divisible sovereignty was deployed by British officials to curtail the international status of the states, the very concept of divisible sovereignty could make the most sense only in the context of international law.
3.1. The practice of jurisdictional politics
Lauren Benton’s studies show the importance of jurisdictional politics in empires and the constitutive role played by plural legal orders in the final ascend of the colonial state as the arbiter of power and justice. In maintaining indigenous legal systems, the British opened up arenas for legal contests between Indians, so much so that aggrieved Indians began to approach the British courts for justice when courts based on personal law failed to give a favorable verdict. These appeals to British order and justice eventually paved the way for the legal and political supremacy of the British and made Indian subjects British subjects.Footnote 39 In the context of the princely states, too, Benton has underlined the importance of socio-legal practices as central to the conception of an imperial legal order. The territorial unevenness of the British empire marked by different levels of sovereignty spawned a rich array of political practices, which were, in turn, codified as tenets of political law by British officials like C. L. Tupper and William Lee-Warner. In showing how these imperial legal practices fed into conceptions of international law, Benton moves away from a treaty and treatise-centric understanding of international law to practice and politics-oriented conception of international law.Footnote 40
This move from theory to practice defines the new approach to the history of international law that we see in Saksena’s book. Alexandrowicz’s pioneering writings on the history of international law, as we saw above, suffered from an overdetermined stagism. Jennifer Pitts has convincingly shown us that the early writers of the European law of nations articulated the moral supremacy of Europe and that there was no consensus on the place of Asian states in the law of nations before the 1800s.Footnote 41 The shift from natural law to positive law was indeed an indicator of the growing colonial ambitions and supremacy of the British in the South Asian context, for we see the use of terms like paramountcy in the language of colonial treaties, mainly from the first quarter of the nineteenth century. Antony Anghie’s influential account of the constitutive relationship between colonialism and international law shows how sovereignty as a concept grew out of colonial encounters between Europeans and non-Europeans. The ideological origins of sovereignty lie in cultural differences rather than in cultural homogeneity. In classifying and ordering sovereignty on the civilizational scale, Europeans saw sovereignty as a major marker of difference.Footnote 42 In colonial India, the sovereignty of the English East India Company was a matter of legal dispute each time a case involving the princely states came up in an English court. The dual character of the Company—commercial and political—was confounding to Indian rulers, for in Indian political tradition, there was no divisibility of sovereignty on the basis of commercial and political activities.Footnote 43 It is no wonder that the commercial character of the Company led many Indian rulers to treat the Company as a lowly trading agent of a distant sovereign, whom they considered to be their equal. For Westlake, the legal position of the Company was unambiguous: The Company was an entity called into existence by the Crown, and the Crown was responsible for all its acts. If the Company acquired a foreign territory or engaged in war with a foreign state, they were the Crown’s responsibility.Footnote 44
These assumptions about sovereignty and law did not preempt disputes. The theoretical shifts in international law, even as they map on to some broader shifts in imperial policies, like the shift from equal to unequal treaties, are not enough to capture the nuances of the legal debates between the British and the states. Saksena’s main argument is that legal debates over the status of the princely states are ‘key to understanding the history of sovereignty, the construction of the modern Indian nation-state, and the scope and stakes of international law itself’.Footnote 45 In offering an alternative history of sovereignty through legal and political debates in ‘sub-imperial polities’, she offers a new account of the boundaries of the international.Footnote 46 Princely states constituted alternative political spaces where different political traditions and institutions prevailed. Histories of sovereignty and law in South Asia should take note of the intricate and, at times, sophisticated debates about state sovereignty to recover an alternate tradition of Indian political thought that is not limited to the tenets of anticolonial nationalism, such as democracy, republicanism, and popular sovereignty. The debates on sovereignty in the states were often conspicuous by the absence of any notion of ‘the people’. These debates took place at a time when states’ subjects had not yet become states’ people, a process that hastened in the 1930s with the growing clamor for democratic reforms in the states from Indian nationalists. Saksena competently shows us how neither the sovereignty of the states nor the British was a settled fact. This in itself shows us the limits of legal positivism based on the absolute supremacy of the British in South Asia, for British sovereignty over the princely states was often interjected by state officials. The nineteenth century was a collage of sovereignties with overlapping claims and territories, where no single sovereign commanded universal authority. The ascend of the British as the suzerain did not extinguish the debates on sovereignty but engendered new arenas of conflicts.
4. Imperial-international and the politico-juridical complex of British annexationism in colonial India
In this section, I will focus on a set of case laws regarding the British relationship with the princely states to show that international law was often summoned to conflicting ends by princes and British officials, even after the suzerainty of the British was unchallenged. These case laws show the entangled relationship between imperial and international and make a case for placing them in the same analytical frame. More specifically, I argue for imperial-international as a framework to understand the imperial ends to which international law was bent in these disputes. A chief feature of imperial-international lay in its double act of making and unmaking state sovereignty, first by establishing the sovereignty of the states as ‘a question of fact’ through international law and second, by legitimizing British conquests as ‘acts of state’. The two main ways in which the British justified their territorial acquisitions in India were through conquest and state consent. State consent was perhaps a less popular measure than the former. In his rejoinder to Westlake, Lee-Warner stressed consent as the most important component of international law.Footnote 47 Dismissing geography or sovereignty as chief elements, Lee-Warner argued that whether the consenting state was fully independent or sovereign was immaterial. If there was no common legislature to which the consenting parties were subject, and disputes between states could not be settled in municipal law, then that realm of dispute belonged to the sphere of the international.Footnote 48 State consent was key to the legitimacy of the Indian treaties, for it represented the considered acts and consent of two parties. As Saksena shows, the annexation of Awadh in 1856 was done, inter alia, on the grounds of the treaty violations, especially the breach of the 1801 Treaty’s provisions that provided for a system of administration ‘conducive to the prosperity of [his] subjects and calculated to secure the lives and property of the inhabitants’.Footnote 49
Act of state was the most ingenious and imperial way in which the British summoned international law into their service. It also demonstrates the entangled relationship that constitutes imperial-international. The state of Tanjore in Southern India was absorbed into the British territories through the infamous policy of Doctrine of Lapse championed by Lord Dalhousie, governor-general of India, in 1856. This policy stipulated that rulers dying intestate without a male heir would risk escheating their state to the British territories. When Rajah Shivaji of Tanjore died in 1856 without a male heir, his state was absorbed into the British territories. The British let the state lapse not only on the grounds of no legitimate male heir to the throne but also because the sovereignty of the state had been in steady decline for decades. The sovereignty of the deceased ruler was practically confined to the precincts of the Tanjore Fort. The growing treaty relations with the British often entailed huge payments for the upkeep of British military battalions for the state’s protection.Footnote 50 These payments were made through the cession of revenue rights to the British, emasculating the state for all practical purposes. When the ruler died, not only the remaining territories came to the British, but also his possessions. On 18 November 1856, Kamachee Bhai, his widow, appealed to the Madras Supreme Court that the Company had deprived her of the private properties of the ruler of which she was the rightful heir. She asked for the restitution of these properties on the basis that the Company had rights only over those properties the ruler held in his public capacity.Footnote 51
The Company claimed the acquisition of all properties as an act of state, for the ruler of Tanjore was an absolute sovereign, albeit limited to the fort, with power over life and death. Even though the ruler had only titular and nominal powers limited to a fort, the Company claimed that he was an absolute sovereign like the ruler of England. When the ruler enjoyed absolute sovereignty, all properties in the state belonged to the ruler. Moreover, the difference between public and private properties involved the interpretation of the treaties between Tanjore and the British; lawyers of the Company argued that a municipal court had no jurisdiction on the matter. Thus, the Company advanced two core claims to legitimize the lapse of Tanjore. First, the state was fully sovereign and thus a subject of international law, and thereby, what transpired between the state and the Company as the agent of the Crown was an act of state. Second, the relationship between Tanjore and the British did not come under the purview of municipal law. Christopher Rawlinson, Chief Justice of Madras Supreme Court, dismissed both claims and ruled in favor of Kamachee Bai.Footnote 52 Leave for appeal was granted, and the Privy Council heard the case in 1859. By then, the rule of the East India Company had ended, and the Crown had taken over India’s direct administration.Footnote 53 Lord Kingsdown’s judgment reversed the Madras Supreme Court judgment on the ground that Madras erred in assessing the sovereignty of Tanjore. Moreover, the Company was a full-fledged sovereign, and its political acts were to be taken as acts of state. He argued that the Company had the ‘power to acquire and retain and govern territory…and to make peace or war with Native powers of India’ and that the ‘acts done in execution of these sovereign powers were not subject to the control of the Municipal Courts, either of India or Great Britain’.Footnote 54 The British government was within its sovereign right to take over the properties of the ruler through its delegate, the East India Company.
Kamachee Bai’s failed attempt to restore her property rights in the wake of the annexation of Tanjore opens the entangled world of imperialism and internationalism and shows how imperialism was inextricable from international. The British officials had to first institute the ruler and the state as subjects of international law to extinguish their sovereignty and claim all private and public properties through an act of state. It is also striking that even before the theory of divisible sovereignty was articulated by Henry Maine, we have, in this case, a clear example of the partitioning of sovereignty into spheres. Even as the ruler of Tanjore was an atrophied figure who sold out revenue rights to the British, he was seen as a full sovereign. Thus, sovereignty was deemed to exist in big and small states as well as in independent and dependent states or in a titular state like Tanjore, which the Chief Justice of the Madras Supreme Court was unable to see as a fully sovereign state.
Many court judgments in the nineteenth century came out unfavorably for the princely states as most of them centered on a single question: whether the state in question and the East India Company were sovereign entities who acted in their sovereign capacity. This is exactly the line of argument we see in a case involving the deposed and imprisoned Ruler of Coorg and the East India Company.Footnote 55 The ruler was taken prisoner soon after the annexation of Coorg in 1834 on the grounds of misgovernment and remained in prison until 1850 when he was allowed to visit London. He refused to go back to India and remained in London, appealing to the Court of Chancery in 1854 for restitution and payment toward two promissory notes that the Company had taken possession of along with the rest of his properties. John Romilly, Master of the Rolls who heard the case, recognized that much of the confusion had arisen because of the dual character of the East India Company, which acted both as a commercial and political agent of the Crown. Romilly came out with the view that, despite the ambiguity surrounding the acts of the Company, as far as the Rajah of Coorg was concerned, the Company was ‘a sovereign state wholly independent and at war with him’.Footnote 56 Furthermore, as the Rajah was a sovereign, he held the promissory notes in his political capacity as the ruler; if he had held that in his personal capacity, he would have been entitled to relief.
These cases demonstrate how legal imperialism went hand in hand with political imperialism and how central legal justifications were for the colonial project of conquest. The British officials and lawyers articulated a peculiar reading of history and theory, grounded in imperial-international, to justify the territorial conquests of the Company as legal. In these cases, colonialists appear as the unapologetic advocates of native sovereignty, sometimes comparing them to European sovereigns. The early notion of equality between native and European sovereignties, which lay at the heart of an earlier period of treaty relationship between the states and the British, did not really produce the same scale of unambiguous reiterations of the sovereignty of the states as these disputes. It is striking that the British became votaries of native sovereignty exactly when they became the paramount power in South Asia. The co-existence of discourses around native sovereignty and British paramountcy not only calls into question stage histories of international law but, as I argue, shows the entangled relationship between imperial and international or imperial-international as a hyphenated, co-constitutive idea that shares the same conceptual, political, and legal forcefield. The hyphenated existence of international suggests that even as the British was at pains to prove the sovereignty of the beleaguered Indian states on the same level as their own English King, international as a concept or idea did not exist independently for them. It was always to be in service of imperialism.
4.1. Constitutionalism of princely sovereignty in colonial India
The most perceptible shift in the discourses on sovereignty in twentieth-century India coincided with the debates around a future Indian federation. If constitutional reforms in British India from the late eighteenth century onward were mainly geared toward the British provinces, by the 1920s the time had come to think about a single constitution for united India, consisting of the British provinces and princely states. Chapters 4 and 5 of Saksena’s book show the nuances and complications involved in conceiving princely sovereignty in the age of federalism in colonial India. Her central claim in Chapter 4 is that princely states became the votaries of divisible sovereignty in the federal debates, for they thought that federation entailed parceling and layering of sovereignty and that federation would allow them to retain sovereignty at the state level. This shift from a territorial or unitary conception of sovereignty, which, as we saw the book discusses in the earlier chapters as the chief marker of debates on state sovereignty in the nineteenth century, to divisible sovereignty had wider ramifications. British officials argued that the division of sovereignty was to be guided by ‘imperial interests’, meaning it was up to the British to decide where the sovereignty of the states ended and theirs started.Footnote 57 The states disputed this by arguing that ‘state consent’ determined the boundaries of sovereignty.Footnote 58
A fascinating feature of Saksena’s study is her ability to relate the debates on sovereignty in India on multiple spatial scales. As she argues in Chapter 5, the debates on sovereignty, especially around federation, straddled local, national, and international scales. The states sought to maintain absolute sovereignty over their states, except for jurisdiction over all-India or common matters like defense, external affairs, and communications. The states saw themselves as essential to a conception of national sovereignty in that they were to be represented in the federal chamber and were to guide national-level policymaking. The debates on federation and sovereignty in the interwar period also fostered the global aspirations of the princely states through their presence as autonomous states on world forums like the League of Nations.Footnote 59 In other words, the princely states deployed the idea of divisible sovereignty to obtain safeguard at all three scales, in the process entrenching the ‘semi-international position’ of the states.Footnote 60
A lacuna in these debates on sovereignty in Saksena’s book is kingship. Arguably, much of the debate on sovereignty in the states revolved around institutional structures and what must be done to make states eligible to join the federation. It was precisely when federation became a practical goal for Indians that monarchy and kingship came under increasing scrutiny from all quarters—the British, Indian nationalists, and the princes. Saksena does not enter into debates with the centrality of monarchy in the princely conception of sovereignty. Part of this is due to her focus on the international status of the states and, thereby, on international law, as opposed to debates on constitutionalism within India. However, examining constitutional debates is necessary to acquire a holistic view of sovereignty in India. Kingship was the quintessential Indian political tradition and remained central to the definition of the princely states. The British considered personal rule as the chief marker of the princely states, and when a native prince did not rule, the state would cease to exist. Rahul Sagar’s study on the political reforms and constitutionalism in nineteenth century Baroda under the administration of T. Madhava Rao shows us how entrenched was monarchical sovereignty even in a state that was attempting to constitutionalize. Rao’s own famous treatise on enlightened government, Hints on the Art and Science of Government, written for the young Baroda ruler was premised on rajdharma (duties of the king) rather than suggesting an alternative form of government or conception of sovereignty.Footnote 61 All the state constitutions provided the ultimate sovereignty and veto power as vested in the ruler. This was the case even in other progressive and developed princely states like Travancore, where the ruler had the veto power over the acts of the democratically elected legislatures. The state was inextricable from the ruler, and the legal personality of the state was that of the ruler.Footnote 62 Until Indian independence, no entity other than the ruler could represent his state, and this was the same principle on which Indian states acceded to the Indian Union after the British left India. These accessions, including the accession of Kashmir, Hyderabad, and hundreds of other states, were legal only on the ground that the ruler of the state willingly signed the instrument of accession.Footnote 63 Kashmir’s accession to India is legal on this imperial legality rather than on democratic legitimacy, which would entail the choice of accession resting with the people rather than the ruler.
As the earlier discussion on the acts of state showed, the sovereignty of the state was conflated with the ruler. The titular ruler of Tanjore was considered an absolute sovereign, and thereby Tanjore, a state, even though the territorial extent of that state was confined to a fort. This personal aspect of sovereignty was central in legal disputes involving property rights and civil suits. As we saw in the cases involving Tanjore and Coorg, courts had to adjudicate on whether state sovereigns in India were comparable to sovereigns in Europe, for there were severe limits on absolute sovereigns to acquire personal property, and in occasions where they did, like in England, that was a relatively recent right devolved upon the monarch.Footnote 64
One of the cases that define the overall argument and structure of Saksena’s book is a divorce petition at the High Court in London seeking to include Gaekwar Sayajirao III, the ruler of Baroda, as co-respondent in the case.Footnote 65 George Statham alleged that his wife Beatrix Statham engaged in adultery with the Gaekwar and sought leave to serve the co-respondent (Gaekwar) by substituted service. This entire case revolved around the legal status of the ruler and whether he was amenable to processes in a court of law. Bargrave Deane, the presiding judge, took recourse to both facts and history to ascertain the sovereign status of the ruler. Whenever a sovereign was involved in a dispute, the India Office under the Secretary of State for India was to issue a certificate stating that the said ruler was a sovereign. A certificate issued for Baroda just the previous year, in 1911, attested that the Gaekwar was a sovereign and not a subject of His Majesty the King. However, Deane went further to examine the history of the British relationship with Baroda to show that the ‘suzerainty’ of the British did not entail the absence of sovereignty of the state. He cited some leading writers of international law like Grotius, Pufendorf, and Vattel to argue that ‘in unequal alliances, the inferior power remains a sovereign state’.Footnote 66 Thus, even as there was an unequal relationship defined by the suzerain status of the British and the vassal status of Baroda, the state continued to remain sovereign with the right to its own government and the allegiance of its subjects. In agreeing with Gaekwar that he was the sovereign of a state, Deane concluded that he was subject only to the law of nations and not to the laws of a municipal court.
There was another dispute involving the Gaekwar of Baroda in 1938 when the Railway Company in his state was sued by a timber merchant for breach of contract involving sleepers for the construction of rail lines in the state.Footnote 67 The question of law revolved around whether a corporation in the state, like a Railway Company, could exist independently of the sovereign in whose name it was established and whether a suit could be allowed against the Company. The Privy Council ruled that such an action against the Baroda State Railway Company, even if not directed against the sovereign, would violate sections 86 and 87 of the Code of the Civil Procedure (1908) that exempted sovereigns from being sued in courts of law. What these disputes clearly show is that the conception of sovereignty in the states was based on absolutist conceptions of monarchy, wherein the ruler was the state and the state the ruler.
The legal personalities of states and rulers were inextricable. How does one square the idea of princely sovereignty as resting with the monarch with the idea of divisible sovereignty that is at the heart of Saksena’s book? There is no one answer to this question, and a lot depends on whether one takes an international law or constitutional law perspective. From an international law perspective, sovereignty is easily divisible, especially in a federation, for Henry Maine made references to the German states in the German imperial federation as an example of divided sovereignty, where federal units and the federal center shared sovereignty. From this perspective, it is clear that sovereignty was divided between the princely states and the British. However, it is not clear that there was any division of sovereignty constitutionally possible within the state, for we have no evidence of any state constitutions referring to anyone other than the ruler as the ultimate sovereign of a state. The British also recognized the rulers as such. This might lead us to argue that divisible sovereignty is an external aspect of sovereignty rather than its internal aspect. External aspects of sovereignty are involved in questions like extradition or jurisdiction over Europeans, which Saksena discusses a great deal in the book, even when these were debated within the boundaries of a state.
As I have argued above, the British relationship with the princely states shows the co-constitutive nature of imperial-international as an organizing frame, informed by civilizational, geographical, and temporal scales of sovereignty, politics, and international law. I advance imperial-international, rather than imperial internationalism or imperial international law, to signify a politico-juridical formation uniquely central to the jurisdictional disputes and legal justification of the empire, especially its annexationist project, in colonial India. This new framework allows us to push back against the imperial as inaugurating a new era of internationalism through material networks and communication but as smothering an earlier era of internationalism wherein states in India and Europe enjoyed parity as members of an international society.
5. National-international and the nationalist critique of princely internationalism
The debates on the international status of the princely states in India transformed into a political question in the interwar period just when the Indian nationalists grew strident in their view that the Indian states were not international actors. While the princely states took recourse to legal safeguards in federal debates, the British and the nationalists were increasingly considering the princely states as a political problem. The effort led by Leslie Scott, the chief lawyer for the princely states in the 1930s and a one-time solicitor-general in the British government, to claim that treaties were contracts and legal principles, instead of political practice informed by customs and usage, be applied in interpreting the British relationship with the states led to a legal turn in princely politics. This was also the time when the nationalists were increasingly convinced that the Muslim question (or the co-existence of Hindus and Muslims in one state) and the princely question called for political rather than legal solutions. The growth of nationalist politics in the interwar period brought to sharp relief the differences in imaginations about sovereignty. The nationalists imagined a centralized, unitary conception of sovereignty as opposed to a divisible or federal conception of sovereignty. As Chapter 6 of Saksena’s book shows, ‘centralized control and a consolidation of the nation-state’s territories were obvious necessities for the planned economy and the nationalist development model’ that the Indian nationalists advanced.Footnote 68
To understand this new phase of Indian politics in which the international status of the Indian states was disputed by the Indian nationalists and the subsequent wrangles between the states and the nationalists, as best exemplified in the dispute between Hyderabad and the nascent Indian state staged at the UN, we need an adequate frame to bring together Indian nationalism’s peculiar hostility to the international status of the Indian states. Carl Schmitt’s 1931 essay on the imperialism of international law shows how the political and imperial interests of the US had come to define the international law of the twentieth century.Footnote 69 He focused in particular on the 1823 Monroe Doctrine and its afterlives, suggesting this doctrine was, in fact, a unilateral declaration by a US President, which acquired the status of an international consensus due to the dominant position of the US in world politics, so much so that only the US could define the content of this doctrine and draw boundaries to its authority. While European states were permitted to undertake commercial activities in South America, they were to refrain from political meddling; what constituted intervention was to be defined by the US alone. This dominant position and primacy of American imperial interests in the twentieth century led Schmitt to believe that ‘international law as well as constitutional law is itself political law’.Footnote 70 His claim that ‘whoever has real power is able to appropriate and determine concepts and words’ is very resonant with how international law concepts were made and unmade in relation to the princely states by both the imperialists and Indian nationalists.Footnote 71 Thus, in advancing national-international as a second framework to examine the history of international law in colonial India, I show how Indian nationalists deployed political arguments to dislodge the Indian states from their semi-international status. In so doing, we see the nature of debates on the international status of the states, not just on the imperial scale but also on the national scale.
When Hyderabad approached the UN Security Council to help restrain the Indian government from taking over the state, the international status of the states was once again in center stage. However, what distinguished 1948 from the nineteenth-century debates was the fact that the recognition of states also had to deal with the institutions of governance within the state. If the ruler was seen as the absolute sovereign in the states until the 1940s, such a view had become quickly unpopular by 1947, and any conception of state sovereignty, whether in international law or constitutional law, that did not consider the people as the real sovereign was politically problematic.Footnote 72 Hersch Lauterpacht’s main argument in favor of Hyderabad’s independent statehood, as Saksena shows, was based on the idea that Hyderabad was a state under international law with ‘an independent government exercising normal governmental activities within a defined territory’.Footnote 73 Whether such a government could exist against the wishes of its people was perhaps not something that fell under the purview of international law. But that was precisely what sealed the case against Hyderabad. In the sea of democracy, Hyderabad could not sail longer on the boat of statehood fortified by the authority of international law. Political arguments were to win the day and not the law. Lauterpacht recognized this more than anyone else. He wrote that
if there is a disposition on the part of the members of the Security Council or of the General Assembly to assist Hyderabad and to restrain India, then they will have no difficulty in finding that we are a state. If the tendency is the other way, then they may shield themselves behind the finding that we are not a state.Footnote 74
This statement captures the relationship between politics and international law in the age of decolonization rather well. Mere international status alone was not enough; theory was one, and practice quite another, especially when theory was in conflict with the political interests of the dominant groups. Taraknath Das, a Professor at Columbia University and a radical nationalist, took a scathing view of the princely states in the wake of the Hyderabad controversy and dismissed the view that they enjoyed international status. He argued that the princely states’ actual relationship was with the Government of British India and not the Crown; the Crown came into the picture only because it had oversight of the Government of India. He thought that the rightful place of the Indian states lays in an Indian federation and not on a world stage. Speaking of the Indian National Congress’s vision, Das wrote that their cardinal principle had always been to ‘maintain territorial and administrative unity of India, including the princely states’.Footnote 75
Pattabhi Sitaramayya, a veteran leader of the Indian National Congress and a keen advocate of the integration of the princely states, argued in a similar vein by showing that paramountcy lay with the Government of British India and that the states could not escape being subservient to the new paramount power, that is, the government of independent India. His arguments were also motivated by the anachronism of the states in an era of popular sovereignty. ‘It is the people that count…and the will of the people overrides the will of the princes,’ he wrote.Footnote 76 Even moderate liberals like Tej Bahadur Sapru, who was a major advocate of state autonomy and federation in the 1930s, refrained from granting the states any international status in the 1940s and suggested that states remain a part of India. For the British paramountcy over India was supreme and constituted a ‘bond of unity’ between British India and princely India.Footnote 77
In this politically charged atmosphere where monarchy was increasingly under attack, the treaties between the states and the British also drew flak. Legally speaking, all the treaties provided for dynastic or personal rule and left no room for democratic government. Any change in the constitution of a state had to be vetted and approved by British officials. This did not prevent states like Mysore, Travancore, Cochin, or Baroda from introducing responsible governments, but most other states refrained from modernization in the name of old treaties and engagements, thereby antagonizing the nationalists. Even though there was a global sentiment in favor of the upkeep of the treaties after the disastrous effects of the First World War, a war that was, in part, about treaty violations, by the 1940s, Indian leaders like Jawaharlal Nehru were skeptical of the treaties. ‘International law has ceased to be, treaties and undertakings have no value, gangsterism prevails unabashed among the nations,’ Nehru wrote.Footnote 78 Leaders of the princely states like K. M. Panikkar and C. P. Ramaswamy Aiyar were strident advocates of treaty rights of the Indian states. In his essay on the future of the Indian states, Panikkar quoted former Indian viceroy Viscount Halifax,
They (the Princes) and their States do not fit easily into the picture of India as the Congress Party would like to draw it. Yet the independence of the Princes is enshrined in solemn treaties with the King-Emperor and as such are only alterable by negotiation. To scrap these or any other treaties unilaterally would be to scrap one of the principles for which we went to war with Germany.Footnote 79
For Indian anticolonial nationalists like Jawaharlal Nehru, the fact that these treaties were contracted centuries ago when popular sovereignty had not become the force of history was a good enough reason to denounce them. As Saksena recounts, Clement Attlee, the Labor prime minister, was willing to repudiate the treaties on the basis of international law principle, rebus sic stantibus.Footnote 80 For India, this doctrine would mean that the original conditions in which the treaties were contracted could no longer exist because of the demission of the British empire in India. One may note that rebus sic stantibus was a little-known and little-applied doctrine in international law without any substantial body of case law in the 1930s and 1940s. But this doctrine lays at the heart of the British treaty relationship with the states. The emergence of this doctrine is tied to the rise of positivist conceptions of state sovereignty and the argument that states could not be restrained from acting in their national interest even when a treaty contradicts such acts.Footnote 81 The conflict between law and politics was central to this doctrine from the very start. If the idea of pacta sunt servanda (all treaties must be kept) held sway in the writings of Grotius, we can see the competing doctrine of rebus sic stantibus at play in international relations in the nineteenth century. The British could justify this doctrine as and when their political interest suited them. Theoretically speaking, this doctrine is very similar to the doctrine of frustration in contract law. That is, it cannot arise from the unilateral declaration of one party and cannot impugn acts already done (executed acts) but can only affect future commitments or acts (executory acts).Footnote 82 Moreover, the burden is on showing material changes and not incompatibility between parties or differences in views; when material changes occurred, the treaty would automatically be nullified without any action from the parties.Footnote 83 This was not how the British approached the doctrine, as their attempts to revise the port treaties with the state of Bhavnagar show.Footnote 84 For them, it became an instrument they could unilaterally declare so as to violate treaty provisions in service of the empire. The Indian nationalists would stake a similar claim to treaties and paramountcy in that they wanted a unilateral declaration of the abrogation of treaties and a transfer of paramountcy to their hands so that they could exercise control over the states.
6. Conclusion
The Indian princely states were unique subjects of international law in the age of European empires. Unique in a double sense—first, the states had an unusual, indirect relationship with the British crown through a suzerain-vassal relationship. Categories of paramountcy and suzerainty that grew out of this relationship and the political and legal thought around them fundamentally reshaped the making of international law in colonial India. Second, despite enjoying sovereignty for centuries, the international status of the states remained open to debate. The advocates of state sovereignty not only had to dispute the imperialists who tried to reduce them to the status of protectorates or quasi-sovereignties but also the anticolonial nationalists who saw the states as an anachronism in modern India. The history of princely sovereignty in colonial India is necessarily an international history, even as their international status remained open to debate. The chequered history of princely sovereignty in international law was mediated by both imperialism and anticolonial nationalism.
This article has singularly focused on the history of international law in relation to the Indian princely states—locus classicus of international law in colonial South Asia—and highlights the key debates and scholarships in this area. Very few works exist on this topic and hence Saksena’s book should be seen as paving the path for future scholarship rather than as settling age-old historiographical disputes. This article makes no presumption to speak for the history of international law in South Asia as a whole. A quick perusal of the scholarship on international law in South Asia will show that a great deal of it engages with the post-1950 period and the relationship of newly independent nation-states with international legal regimes when the princely states were already extinct.Footnote 85 One way to look at the debates on international law in princely states is as the ‘uses and abuses of international law’. International law was marshalled by the princely states, the Indian nationalists, and the British to further their political ends.Footnote 86 This makes it all the more imperative to see international law in relation to politics, rather than see it as a pure realm of morals and norms untouched by politics. It is precisely such a recognition of the political and historically specific aspects of international law that critical legal scholarships and new theorizations in the field calls for.
The debates on the international status of the princely states bring to sharp relief the relationship between the legal and the political. The political here is not simply politics, but a contest between worldviews and a reflection of the political will of a political community (the British or the Indian nationalists) in the Schmittian sense. As we saw in Section 4, most of the legal disputes revolved around questions which were neither fully legal nor political, such as who was a sovereign and what constituted the acts of state or imperial interests. It is precisely the inseparability of the political from the legal that problematizes the history of international law in colonial India. To underscore this fraught politico-legal landscape of international law in colonial India, I offered two frameworks—imperial-international and national-international—to analyse the historical and theoretical dimensions of the princely states’ tryst with international law. I do not presume these frameworks as radically new nor as universally applicable. On the contrary, I advance these frameworks as a reflection of the specific historical circumstances of British indirect rule in the princely states and the unique status of Indian princely states in the international sphere.
As I argued above, the two frameworks allow us to see the historical, legal, spatial, and political complexities and specificities involved in the debates on princely sovereignty vis-à-vis international law. These frameworks are rooted in an attempt to theorize international law in historically and politically specific contexts which were unique to the Indian princely states. The framework of imperial-international is based on a dialectical approach rather than a stagist approach to international law, wherein historical periods are marked by the dominance of one ideology or another.Footnote 87 In this dialectical approach, imperial and international exist in tension and contradiction with each other and propel the movement of international law. This allows us to see the forcefield of international law in colonial India as generating its own internal force through this dynamic, leading to historically specific debates about sovereignty and the ambiguous sovereign status of the Indian states. The so-called quasi-sovereign status of the states comes to a sharp relief when we see it as a result of a dialectic between the imperial and international, for only in that context does quasi-sovereignty make most sense. The legitimacy of the British annexations in the princely states ironically depended on the fact that the states and their rulers were sovereigns in the European sense. It was the shared ground of sovereignty that an imperial power established through facts and theory, which in turn prepared the ground for the dispossession of that sovereignty. The act of state doctrine was perhaps the most central principle of international law that abetted the colonization of India and the dispossession of the princely states. Yet, that principle existed in contradiction with the ambiguity of what is political and personal or where commerce ended and politics started. The English courts were always left with the task of adjudicating whether a particular act of the British government was political or not. In deciding on the legality of conquest, courts often relegated laws to the place of political, or to the political will of the dominant political community. Imperial-international as a framework also allows us to see that international law not only drew from imperial law or imperial policies but also how international law qua international law was used in service of the empire through a marriage of contradictions.
The political as a category connects imperial-international with national-international in this article. I advance national-imperial as another politico-legal complex that shows how anticolonialism, its reading of princely history, and its commitment to a democratic future impacted the debates on the international status of the princely states. Here, too, a dialectical approach rather than a stagist approach that sees internationalism as arriving after nationalism helps us see how the debates on monarchy and treaties acquired a new salience in the twentieth century, often hailed as the age of democracy and decolonization. If imperialism held the international status of the princely states hostage in the nineteenth century, anticolonial nationalism and waning imperialism together were to do the same in the twentieth century. Thus, national-international as a category shows how international law was debated in the decolonizing world when old colonial legality was giving way to a new democratic ethos based on popular sovereignty. These twin frameworks that exist in tension with their constitutive categories and thereby propel the movement and subjects of international law in the princely states also connote a lack and dependency as is often the case in a dialectical relationship. That is, international as a category did not exist in the princely states in isolation or in independence from either imperialism or nationalism. Ultimately, this lack of isolation of the international in colonial India, and its imbrication with and reaction to imperialism and nationalism is what these frameworks make legible.
Saksena’s book is the first modern account of the colonial lives of international law in the Indian princely states, an area that constituted a quarter of the land mass of the British empire in India. For a long time, histories of sovereignty, state, and strategies of imperial control had not taken adequate notice of the complicated geographical, legal, and political landscape of the princely states, which posed different challenges to the project of British imperialism in India. Saksena shows in painstaking detail the complex debates that unraveled in a span of two centuries as the relationship between the British and the princely states evolved from apparent equality to inequality. The indirect rule had its own politico-legal complex and differed considerably from the direct rule, where the military and political supremacy of the British did not have to be asserted so often. These everyday resistances, or what Saksena calls ‘jurisdictional jousting’, had a formative impact on the British relationship with the princely states and often led to this relationship being debated as signifying an international political formation rather than imperial or national. It is to her credit that she brings alive the debates on sovereignty in India through different spatial registers—local, national, and international—to show how sovereignty manifested itself as multiscalar in these debates. Even though a truncated vision of sovereignty, like divisible sovereignty, was at the core of much of the debates in India, the idea itself has an international provenance, as I suggested above. This idea also raises a different set of debates in the constitutional history of Indian states, as we have seen above. This book stands out for its archival richness (it will be a great reference point for researchers) and lucidity, wherein complex debates are transformed into readable accounts with interesting snippets that personalize the protagonists in the account. In the end, this book leaves a task for historians of India and international law to fulfill by its example: to write more robust legal, political, and intellectual histories of princely states and include princely states in the conceptual and intellectual evolution of ideas and concepts in Indian history.
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