The External Relations of India

In any scheme of constitutional reforms for India the question of external relations and their control must be equitably settled. The Lord Chancellor, in his summing up of the proceedings of the Federal Structure Committee of the first Round Table Conference, mentioned ‘external relations’ as falling into the category of Crown subjects. An attempt to reserve external relations to the Crown engenders grave difficulties, while the political settlement of the Indian demand would be incomplete and certainly unsatisfactory in the event of such a reservation. Even more, the relegation of external relations to the control of ministers responsible to the Crown is liable to serious administrative difficulties, while the existing rights of the Central Legislature which were acquired during the past twelve years would have to be abrogated. Finally, there is the problem of the Indian States in the future federal constitution. In this respect again, the question of external relations occupies an important place. In this article it is proposed to discuss all these questions in detail, for attention to detail is at once necessary and would certainly conduce to a satisfactory settlement of the Indian national demand.

The control of the external relations of India has been so far subject to and defined by the following constitutional utterances and arrangements:

1. H. M. Government admitted "the Government of India to full partnership in the councils of the Empire."

Parliamentary Declaration, 23 May 1917.

2. India was represented and took part on a basis of equality with other Dominions of the British Commonwealth in the Imperial War Conferences and Cabinets of 1917 and 1918.

3. Any re-adjustment of the relations between Great Britain and the Dominions and India "shall be based upon the full recognition of the Dominions as autonomous nations of an Imperial Commonwealth and of India as an important portion of the same.

Resolution IX of the Imperial War Cabinet of 1917.

4. The objective to be achieved was postulated to be "the gradual development of representative institutions with a view to the progressive realisation of responsible government" by India.

Parliamentary Declaration of 20 August 1915.

5. "India's position in the Imperial Conference opened the door to negotiation between India and the rest of the Empire."

Report of the Joint Parliamentary Committee of 1919.

6. Representation of India at the Peace Conference of Paris and the signature by Indian plenipotentiaries of the Treaty of Versailles of 1919.

7. Mention of India in the annexe of the League Covenant which postulates ‘full self-government’ as the criterion of future membership of the League organisation, and original membership of India in the League of Nations.

Article 1 of the Covenant of the League.

8. India is a ‘High Contracting Party’ in all the League treaties and documents

9. Indian plenipotentiaries, by virtue of Royal letters patent, sign League conventions and deposit instruments of ratification by India of same.

Cf. Sir Atul Chatterjee deposited the instrument of ratification

Of the General Act for the Pacific Settlement of International

Disputes, in May 1931.

10. While special emphasis was laid upon the position of India, the Dominions were defined as "autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any respect of domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations."

Balfour Report on Inter Imperial Relations, 1926.

11. In the view of H. M. Government "it is implicit in the declaration of 1917 that the natural issue of India's constitutional progress, as there contemplated, is the attainment of Dominion Status."

The Viceroy to the people of India in 1929.

12. "There is a Dominion Status in action, . . . there is a Dominion attribute which has now become part and parcel of the rights of India."

The Secretary of State for India in the House of Commons, 18 December 1929.

13. Speaking with special reference to merchant shipping legislation, it was emphasised that "'as the position of India in these matters has always been to all intents and purposes identical with that of the Dominions, it is not anticipated that there would be any difficulty in applying our recommendations to India."

Section 124 of the Report of the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, 1980.

14. H. M. the King conferred upon the High Commissioner for India the same diplomatic status as that enjoyed by similar representatives of the Dominions, early in 1931.

These declarations and arrangements, recognised to be inadequate, cannot, it is submitted, be abrogated in any new constitution for India. Reservation of external relations to the Crown, as contemplated by the Sankey Report, militates against the formidable constitutional practice operating during recent years. A constitution which is retrograde in character is out of question.

JURIDICAL AND POLITICAL UNITY OF INDIA

We now pass on to a consideration of the point that both in consitutional theory, legal fact and political reality, India has attained and retains an essential unity for all external purposes. The Interpretation Act of 1889 (s. 18, sub-s. 5) defines India as comprising "British India, together with any territories of any native prince or chief under the suzerainty of Her Majesty." Thus the seal was set upon a fundamental principle which compels recognition by world States of this juridical and political unity of India. Again, the Foreign Jurisdiction Act of 1890 recognises, for all external purposes, the unity of the people of Indian provinces and Indian States. It only remains that the nationality and naturalisation laws of India must be co-ordinated and codified. Furthermore, in all international documents India has preserved this characteristic of territorial and political unity, whether it is in the case of the League of Nations, commercial conventions with foreign States, or emigration of Indian nationals to oversea countries. Even though an administrative definition of the Government of India is available in Section 33 of the Government of India Act, a statutory definition of the "Government of India" as distinct from H. M. Government is necessary.

EXISTING RIGHTS OF THE CENTRAL LEGISLATURE

The Central Legislature of India has acquired certain definite rights in regard to the control of external relations. It is within the competence of the Legislature to scrutinise the budgetary provision for all external purposes, as in the case of India's contribution to the League of Nations and the expenses of the Indian delegations to various international conferences. There is a Standing Committee on Emigration, and the rights of the Legislature in regard to the dealings of India with foreign States, wherever the interests of Indian nationals abroad are involved, are specifically recognised.

In another sphere, arid a more important sphere too, the position of the Central Legislature is secure. Articles 405 and 408 of the Covenant of the League of Nations run, inter alia, as follows: -

Article 405: -

Each of the Members undertakes that it will, within the period of one year at most from the closing of the session of the Conference, or if it is impossible owing to exceptional circumstances to do so within, the period of one year, then at the earliest practicable moment and in no case later than eighteen months from the session of the Conference, bring the recommendation or draft convention before the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action.

In the case of a recommendation, the Member will inform the Secretary-General of the action taken.

In the case of a draft convention the memberwill, if it obtains the consent of the authority or authorities within whose competence the matter lies, communicate the formal ratification of the convention to the Secretary-General and will take such action as may be necessary to make effective the provisions of such convention.

If on a recommendation no legislation or other action is taken to make a recommendation effective, or if the draft convention fails to obtain the consent of the authority or authorities within whose competence the matter lies, no further obligation shall rest upon the Member.

In the case of a federal State the power of which to enter into conventions on labour matters is subject to limitation, it shall be in the discretion of that Government to treat a draft convention to which such limitations apply as a recommendation only, and the provisions of this Article with respect to recommendations shall apply in such a case.

ARTICLE 408: -

Each of the Members agrees to make an annual report to the International Labour Office on the measures which it has taken to give effect to the provisions of conventions to which it is a party. These reports shall be made in such a form and shall contain such particulars as the Governing Body may request, The Director shall lay a summary of the reports before the next meeting of the Conference.

Under these provisions it is obligatory on the part of the Government to bring the conventions of the League to the notice of the Legislature, obtain its sanction and introduce the necessary legislation. It is submitted that the existing powers of the Viceroy to take action over the heads of the legislators in regard to League matters is entirely unconstitutional and derogatory to the functions of any parliament. Nor are these international conventions of purely domestic interest to India alone. It is impossible here to enter into a discussion of the rights of the Central Legislature in relation to the ratification of every convention of the League organisations. But to illustrate the point we desire to make, it must be mentioned that of the 33 League and 11 International Labour Conventions, Protocols thereto and Recommendations ratified by India, the assent of the Legislature was taken by the Government and the necessary legislation passed. In the case of International Labour Conventions this feature is of fundamental importance.

The Government of India is in direct touch with the International Labour Office, and, considering the existing imperfect constitution of India, this is no mean arrangement. In so far as the consent of the Legislature has been and is secured in regard to conventions such as the Conventions, Agreements and Protocols for the Abolition of Import and Export Prohibitions and Restrictions of 1927 and 1928, the Convention and Protocol for the suppression of Counterfeit Currency of 1929 and similar international instruments, it is evident that the Legislature is the only body competent to deal with foreign States interested in these matters. Obviously, such arrangements and constitutional precedents cannot be wiped away. On the contrary, there is every necessity and justification for their equitable extension, as we will show below.

It must be here pointed out that the position of the Indian States has so far been extremely anomalous. While not being international personalities, they are not amenable to any administrative action by the Government of India. In his dispatch to the Secretary-General of the League of Nations dated 26th September 1927, the late Lord Birkenhead, then Secretary of State for India, outlined the difficulties to be faced in extending the scope of international conventions ratified by India to the territories of the Indian States. We are not in any way inclined to embarrass the Indian States. But it is submitted that an Indian Prince is always associated with the work of the Indian delegations to the League. The delegation is composite in character and bound by convention to unanimity of policy. An Indian Prince or, as in the case of the League Assembly this year, one of his officers, always takes part in the deliberations of the League and makes statements on behalf of India which have as much binding effect as those made by any statesman in the delegation and coming from the Indian provinces. In all equity it is essential that the Indian States should become parties to all external obligations undertaken by India from time to time. Actually, whenever an Indian Prince or his substitute lays down a particular line of policy on behalf of India it does not bind his own State, not to speak of the States belonging to the members of his Order. Obviously, such a state of affairs cannot continue indefinitely.

But there is one saving grace for this tangled problem. In the future federal constitution, responsibility at the Centre is to be shared in a corporate manner by the statesmen of the Indian provinces and the Indian States. This is an additional and substantial argument for the co-ordination of administrative action of the Governments of the Indian provinces with that of the Governments of the Indian States. It is pointed out that no question of further administrative difficulties arises in extending the rights of the legislature to the control of external relations of India as affecting the States. At the present moment, the States are not competent to take cognisance of external relations, but a treaty with the Paramount Power, as contemplated by the Princes themselves, ought to be able to straighten up this difficulty, while joint responsibility at the Centre, both by the States and the provinces, would certainly conduce to a working settlement of the question.

Under this head, it now remains for us to point out that the Indian delegations to future international conferences, conducted under the auspices of the League or otherwise, must be responsible to the future Indian Cabinet. The question of co-ordinating the specific interests of India with those of the British Commonwealth can be easily settled. Whenever the Dominions and India are separately represented at international conferences the Empire delegation as a whole provides for joint consultations, and actually this venue has been found useful and satisfactory during the past twelve years. There is a possibility that the individual interests of a particular Dominion might clash with Imperial interests, and such clashes are not few and far between, but this difficulty was never allowed to come in the way of the exercise of external sovereignty by any Dominion of the Commonwealth. On the contrary, individuality of action on the part of the Dominions has enhanced their reputation, while the Empire Delegation always enjoyed a particularly important and useful function. That the Irish Free State was able to co-operate in this direction is a strong proof of the advantages of this arrangement.

INDEPENDENT ACTION BY INDIA

Nor is the position of India different in regard to the devolution of authority upon New Delhi. Even under a regime noted for control from Whitehall, India was sometimes able to exert her individuality, as contradistinguished from that of the Dominions and even that of Great Britain. Without making the catalogue unduly lengthy, we quote the following precedents. Even though Indian delegations to the League and other international conferences are not political or national in character, in the sense that they are not appointed by a sovereign parliament in India but are selected by the Secretary of State in consultation with the Government in India, India's representatives on certain occasions pursued a line of action independent of the wishes of H. M. Government. Thus, India took an independent line at the Washington Labour Conference of 1919 (hours convention), the Genoa Maritime Conference of 1920 (employment of Indian, seamen), the International Labour Conference of 1921 (weekly-rest day), the Barcelona Transit Convention of 1921, the Conventions on the Suppression of Traffic in Women and Children (1921) and on Traffic in Obscene Publications (1923), and the Convention on Opium and Drugs (1925). In the first Committee of the First Assembly of 1920, India and Australia voted in a minority as against Great Britain and other Dominions on the subject of the method for the selection of four non-permanent members of the League Council, while India voted against the whole British Commonwealth in regard to the second part of the resolution in question. Again, in 1920 and 1921, India urged successfully economy in the expenditure of the League. These instances demonstrate the fact that the competence of India in international law and practice to pursue a particular line of policy is not questioned either by the British Commonwealth of Nations or by the rest of the world. It will be seen that even on matters of first-class politic importance India was able to exercise her discretion even as against that of H. M. Government. Nowhere is it more true than in international affairs that personality is a vital factor in shaping policies. Indian control of external relations is sure to produce this healthy effect.

But this involves the weaning of control from the Secretary of State and investing the Government of India with the same. There should be no difficulty in this regard. As early as 1920 this question was solved in the following tentative manner. By means of a modus operandi every effort was made to avoid any specific definition of the residuary rights of the Government in India and the Secretary of State in the shaping of imperial and international policies. A system of prior consultation and agreement upon broad lines of policy was successfully established between the Government in India and the Secretary of State. Indeed, certain wide powers of initiative were given to the Government in India, even though final decisions and responsibility were recognised to be within the practical competence of the Secretary of State. Thus, a unique system of imperial constitutional practice has come to be recoginsed, and the division of sovereignty between the two component units of the Government of India was based on clearly perceivable principles. It is very seldom that the views of the Government in India have been rejected by the Secretary of State. What is required is a statutory definition of the powers of the new Cabinet at New Delhi, vesting it with the privileges and duties so far recognised to belong to the Secretary of State. The future Minister for External Affairs in India would certainly be in liaison with the Secretary of State, if his office is to be retained. Otherwise, the Dominions Office and Ministry of External Affairs in India can co-operate with each other whenever any important difference is to be settled, as is done by similar ministries in the Dominions.

FISCAL AUTONOMY

This is not the place for a full discussion of the question of fiscal autonomy in relation to the powers of the future federal Cabinet in India. But it is necessary that we should point out the external aspects of this problem. The Fiscal Convention of 1921 has given certain rights to the Central Legislature, and the right of India to negotiate fiscal matters with the Dominions is recognised by the Joint Parliamentary Committee of 1919, as shown above. Definite settlements in this direction with Australia and Canada in 1922 were the outcome of the visits of the Rt. Hon'ble V. S. Srinivasa Sastri to these Dominions. Even more, India has direct and complete relations, which to a certain extent resemble diplomatic approach, with South Africa, as is clearly illustrated by the Cape Town Agreement of 1926. An Indian Agent accredited to the Union Government is now resident in South Africa and looks after the interests of our nationals in that Dominion. This only emphasises the position of India in relation to control of external affairs.

Yet another illustration of the necessity for direct approach between India and foreign States is available in the following two facts. The Indo-Turkish and the Indo-Polish Commercial Conventions of 1930 and 1931 respectively brought to a head the question of direct relations between India and foreign States, for the first time in recent history. No doubt, the diplomatic agencies at Angora and Warsaw were utilised in the implementing of these conventions which provide for most favoured nation treatment of articles of commerce between India and Turkey and Poland respectively. In all similar arrangements in the future, the Ministry of Finance acting through the medium of the Minister for External Relations, ought to negotiate with foreign States, as is the usual practice of the Dominions at the present day.

Another significant feature of recent years also lends weight to this proposal. With the recognition of India's specific interests in fiscal and commercial matters, Indian Trade Commissioners are already stationed in some of the foreign States. Such were the appointments to Hamburg and Milan, while similar appointments to New York, Zanzibar and Alexandria were foreshadowed by the late Viceroy. These appointments ought to form the nucleus of a system of Indian trade and consular services functioning under the joint control of the future ministries of Commerce and External Relations. As shown above, the High Commissioner for India in London is accorded the status enjoyed by similar representatives of the Dominions, and an extension of this principle ought to give the Indian trade and consular services definite recognition by foreign States, as in the case of the Dominions.

RELATIONS WITH FOREIGN STATES

This leads us to a consideration of India's relations with foreign States. We recognise that this is a very delicate question and bristles with numerous difficulties. Imperial policy sets its limit to India's dealings in this respect. But there is a clear necessity for direct relations between India and foreign States. Such is the position existing between the Dominions and Great Britain at the present day. Wherever the Dominions have their own diplomatic representatives, e.g., Canada and the Irish Free State at Washington, Paris, Tokio, etc., such diplomatic agency was specifically intended to be supplementary to that of H. M. Government. Such was the original scheme prepared by the Canadian Prime Minister immediately after the Great War. Indeed, a scheme was original adumbrated according to which Dominion diplomatic services were intended to be tacked on to the Imperial Service in the manner of subordinate coalescence. We recognise that this is not the practice of the Dominions at the present day, which always try to preserve their own individuality. But during an agreed transition period an Indian diplomatic corps should be given the opportunity of familiarising itself with the manifold problems involved in inter-statal relations before definitely taking charge thereof.

Such is the pre-eminent demand in the case of States with which India has direct and intimate relations of its own. Such is the nature of India's connection with South Africa. There are about three million Indian nationals abroad, and emigration is a matter of vital concern to India and actually falls under the jurisdiction of the Central Legislature even under the present regime. It is submitted that direct relations with foreign States where Indian nationals find a home ought to be conceded. Without going into statistical detail, it is urged that wherever Indian overseas interests, either in the shape of the numerical strength of emigrants or of vested interests, preponderate, Indian diplomatic representation ought to be permitted. Such are the demands of India in relation to the Netherlands (Dutch Guiana and Java), Portugal (Portuguese East Africa), France (Madagascar and other colonies), certain Central American States and others. Of course, individual interests must be carefully weighed before this suggestion is put into operation. But it is urged that the principle of direct approach to foreign States must be granted and the future federal parliament in India vested with its control.

We can now pass on to a consideration of the extension of this principle to States with which India has direct political dealings of one kind or another. India does enjoy direct relations with Muscat and certain Arabian States, besides Nepal, Sikkim and Bhutan. In this connection, the control of Aden, as outlined in a recent report of the Government of Bombay, ought to pass on to the control of the Central authority. Such again is the need for direct dealings with ultramontane countries like Afghanistan, Persia and Tibet on the one hand, and of Siam, China and Indo-China on the other, to mention a select few at random.

India's position in relation to the Permanent Court of International Justice ought to be in a similar manner stabilised. India has ratified the Protocol of Signature and the Optional Clause of the Permanent Court on 4th August 1921 and 5th February 1930 respectively. She has also ratified the General Act for the Pacific Settlement of International Disputes in May 1931. In case of disputes, either with members of the British Commonwealth or with foreign States, these international instruments can be pressed into service and thus friction can be obviated whenever the control of external relations by the future federal Cabinet lends itself to disputes of an inter-statal character.