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Was Manipur Independent After August 15, 1947?

The maiden session of the independent Manipur Assembly (National Parliament) was formally inaugurated by Maharaja Bodhchandra on October 18, 1948 at the Durbar Hall in the Palace Compound. In his speech, the Maharaja declared:

‘In the great galaxy of heroes in the imperishable roll of honor there were, there are now and there will never cease to be, beloved Manipuri names testifying to the fact that our people would rather die unsullied than outlive the disgrace of surrender to any measure that may work prejudicial to the preservation of the separate entity of the State, while fostering the good and cordial relations with the Dominion of India. I am confident that the Members of the Assembly will please see this fair record is never broken’.

The Lapse of British Suzerainty in Manipur:

The Indian Independence Act, 1947 (hereafter simply as the IIA, 1947) was passed by the British Parliament to formally put an end to British colonialism in the Indian subcontinent. Under the Act, two independent Dominions known as India and Pakistan were set up with effect from August 15, 1947. Along with that, Manipur also became technically and legally independent from the British Crown by virtue of the Section 7(1) (b) of the IIA, 1947. The suzerainty of the British Crown over Manipur lapsed with effect from August 15, 1947. It states:

‘The suzerainty of His Majesty over the Indian States lapses, and with it, all the treaties and agreements in force at the date of passing of this Act between His Majesty and the rulers of Indian States, all functions exercisable by His Majesty at that date towards Indian States or the rulers thereof, and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise’.

There is also a proviso in the same Section, which states that notwithstanding anything contained in this section, all earlier agreements relating to customs, transit, communications, posts and telegraphs or other like matters would continue to be given effect until denounced by the ruler of the Indian States on the one hand or by the Dominion concerned on the other or superseded by subsequent agreements.

However, the proviso to Section 7(1) (b) of the IIA, 1947 does not implicitly or explicitly affect the independence of the native States. In other words, this proviso does not limit or contradict Sub-section (1) Clause (b) of Section (7). It only allows the continuation of the States’ relations with the Dominions on few subjects such as posts and telegraph and communications. There is nothing in this proviso that prevents the sovereign existence of the native States. Besides, it has no binding character as the same could be abrogated at will by either of the two parties concerned. Therefore, the independence of Manipur remained intact notwithstanding the inclusion of the said proviso in the IIA.

On May 12, 1947, the Cabinet Mission presented the Memorandum on States’ Treaties and Paramountcy to His Highness the Chancellor of the Chamber of Princes. Para 5th of the Memorandum states the following:

‘His Majesty’s Government will cease to exercise the power of paramountcy. This means that the rights of the States which flow from their relationship to the Crown will no longer exist and that all the rights surrendered by the States to the paramount power return to the States’.

Confirming the independence of the native States, Lord Mountbatten declared on July 25, 1947 to the representative of Indian States thus, ‘Now, the Indian Independence Act releases the States from all their obligations to the Crown. The States have complete freedom’”technically and legally they are independent’.

Reaffirming the same position Mohammed Jinnah also made the following statement: ‘Constitutionally and legally the Indian States will be independent sovereign States on the termination of paramountcy and they will be free to decide for themselves any course they like to adopt . . .  it is open to the States to join Hindustan Constituent Assembly or the Pakistan Constituent Assembly or decide to remain independent.’ The Supreme Court of India, in its privy-purse judgments given since 1954-1993 had pronounced that the States became not only ‘˜sovereign’ but also fully independent in 1947. As such, one can safely conclude that Manipur became a sovereign independent State right after the transfer of power on August 15, 1947.

The Instrument of Accession: A Fraudulent Exercise

It is also worthwhile to point out that more than 500 native States also became independent, technically and legally as per Section 7(1) (b) of the Indian Independence Act, 1947. The Act while granting independence to the native States did not prevent them to accede to the new Dominions. Sub-section (4) of Section (2) of the Act thus states, ‘Nothing in this section shall be construed as preventing the accession of Indian States to either of the New Dominions’.

Armed with this provision, the Dominion of India undertook various steps towards effecting integration of native States with the Dominion of India by promulgating the India (Provisional Constitution) Order, 1947, by enacting the Extra-Provincial Jurisdiction Act, 1947 and by amending the Government of India Act, 1935.

Prior to independence, Sardar Vallabhai Patel invited the princes to accede to the Dominion of India on three subjects namely defense, external affairs and communications. Lord Mountbatten was entrusted with the task of conducting negotiations with the rulers of native States. On July 25, 1947, he urged the rulers of the native States to accede to the Indian Dominion on three subjects exclusively and not beyond. He further stated that either the internal autonomy or independence of the States would be protected.

Accordingly, by August 15, 1947, most of the native States (except Hyderabad, Kashmir and Junagarh) had acceded to the Dominion of India by signing the Instrument of Accession (hereafter simply as the Instrument). The Maharaja of Manipur also signed the Instrument on August 11, 1947 and, thus supposedly acceded the three main subjects to the Indian Dominion.

The legality of the Instrument will be dealt with later, but assuming that it is valid for the time being, the assumption behind the very ‘act’ of signing such an Instrument deserves to be understood. If the native States were not independent or were not separate political entities, the necessity for executing the instrument would not have arisen. The fact of giving the option to join either of the two Dominions or remain independent underscored the sovereign status of the native States like Manipur. Clause (8) of the Instrument clearly envisages that nothing in the said Instrument affects the continuance of the Maharaja’s ‘sovereignty‘ in and over the State. Therefore, from the juridical point of view, the Instrument of Accession signed between the Maharaja of Manipur and the GoI was in the nature of an international bilateral treaty concluded between two sovereign States. But contrary to what certain quarters claim, the accession was not compulsory as revealed by the Government of Pakistan in its complaint lodged to the United Nations on the Kashmir issue. Para 10 of the ‘Particulars of Pakistan’s Case’ states:

‘In accordance with the agreed scheme of partition and the Indian Independence Act, 1947, Indian States were under no compulsion to accede to either of the two Dominions. Notwithstanding this clear provision the Government of India by a combination of threats and cajolery forced a number of States into acceding to the Indian Dominion.’

Fallacy of Sovereignty Claim under the Instrument of Accession:

The pertinent question is whether or not the signing of the Standstill Agreement and the Instrument of Accession by the Maharaja of Manipur on August 11, 1947 deprived Manipur of its sovereign status. A serious lacuna is detected in the argument that claims to sustain the sovereignty of Manipur notwithstanding the signing of the Instrument of Accession. It is, therefore, pertinent to interrogate into how Manipur could still remain sovereign after executing the Instrument of Accession by which key powers were supposedly ceded to the Dominion of India.

The Instrument of Accession provided for the cession of three subjects namely, defense, external affairs and communications by Manipur to Indian Dominion. This is often interpreted by certain informed quarters as not implying the transfer of Manipur’s sovereignty to the Dominion of India by citing Clause (7) and (8) of the Instrument which are given below:

Clause 7: Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any further constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.

Clause 8: Nothing in this Instrument affects the continuance of my sovereignty in and over the State or, saves as provided by or under this Instrument, the exercise of any powers authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State.

The above two clauses are often cited to drive home the point that sovereignty still remained with Manipur. These are considered as the ‘escape clauses’ which enabled Manipur to absolve itself from any obligation arising from the Instrument. In this regard, it is worthwhile to recall the ’16th May Statement of the Cabinet Mission’ issued in 1946, ‘The states will retain subjects and powers other than those ceded to the Union’. This provision is also often invoked to substantiate the claim that Manipur retained its sovereignty even after signing of the Instrument of Accession.

However, the above stated arguments lack substantive understanding of what constitutes sovereignty. Far from successful in reclaiming the sovereign status of Manipur, such arguments unwittingly land oneself into the trap of accepting the subservient political status of Manipur. The notion of sovereignty implies the supreme authority of the State in both internal and external spheres. Internally, it establishes supremacy of the State over all individuals and associations; externally it upholds independence of the State from the control of or interference by any other State.

Sovereignty is generally defined in terms of its absoluteness, inalienability and indivisibility. Once sovereignty is limited by any superior power or is transferred to another authority or divided/shared between two entities, a state can no longer claim to remain as a sovereign entity. In the light of this understanding, it is difficult to imagine how Manipur would qualify to be a sovereign state in the absence of such vital powers such as defense, external affairs and communication. Matters like defense and external affairs constitute the external spheres of sovereignty which Manipur was deprived of under the Instrument of Accession.

Even the so-called internal autonomy was seriously undermined within the framework of the Instrument of Accession. As such, the understanding that Manipur was a sovereign State regardless of the Instrument of Accession is fraught with serious theoretical misconception.

Critiquing the Critique of Critics

A highly misplaced understanding with regard to the Instrument of Accession is that it had become invalid after the adoption of the Indian Independence Act, 1947. Such an understanding is rooted in the wrong interpretation of Section 7(1) (b) of the IIA, 1947 which states that all treaties or agreements in force at the date of passing of this Act between the rulers of the Indian States and the British Crown also lapsed with the lapse of British suzerainty over the Indian States. Put simply, any kind of treaty or agreement concluded between the native States and the British suzerain power had been superseded by the said provision of the IIA, 1947.

However, the above understanding (or rather the critique of the Instrument of Accession) suffers from certain legal and historical fallacies. First, Section 7(1) (b) of the IIA, 1947 mentions only about agreements, treaties and the like and the term ‘instrument’ cannot be found in the said provision. As such, the Instrument of Accession (if it were a legally valid document) did not lapse with the lapse of British suzerainty nor superseded by the IIA, 1947. Second, Section 7(1) (b) refers only to the agreement and treaties concluded between the British Crown and the rulers of the native states. It does not even slightly refer to any kind of political and legal transaction reached between the native states and the Dominion of India. Third, contrary to the understanding that the IIA supersedes the Instrument of

Accession signed on August 15, 1947, sub-section (4) of Section (2) of the IIA, 1947 rather leaves the options open for the accession of the native states to either of the two independent Dominions of Pakistan or India. Fourth, an instrument is a legal transaction which once entered cannot be revoked by the acceding party on the ground that it no longer wants to remain in the state of being acceded.

Therefore, the Instrument of Accession, if transacted following proper legal procedures, remains an irrevocable legal document. The IIA cannot invalidate nor supersede the Instrument of Accession. Last, the understanding of the Instrument being superseded by the IIA implies that it was valid upto the moment before the adoption of the IIA on August 15, 1947 since it became invalid only after the said date. Such an understanding instead of critiquing the legality of the Instrument, sustains the validity of the same from August 11, 1947 the day on which it was signed to August 15, 1947 the day on which the IIA was adopted. In other words, the above understanding invariably accepts the historicity of the transaction of the said Instrument without any historical awareness of its occurrence. Therefore, a fresh attempt to offer a more informed critique of the Instrument of Accession is rendered highly crucial to sustain the independent political status of Manipur after the lapse of British suzerainty.

Legality, Historicity and the Politics of Secrecy

Most of the scholars seem to attach more importance to the Merger Agreement than the Instrument of Accession. This is primarily on account of the understanding that Manipur was integrated into the Indian Union following the signing of the Merger Agreement in 1949. However, undue obsession with the issue of merger leaves the issue of the Instrument of Accession without giving a fair treatment rendering the efforts to contest the validity of the merger meaningless.

Any effort to reclaim the sovereign status of Manipur should involve debunking the validity of the Instrument of Accession. Questioning the validity of the Merger Agreement without enquiring into the implications of the Instrument of Accession would always remain a wasteful exercise.

In fact, the ground for integration was already prepared by the Instrument of Accession while the signing of the Merger Agreement was simply a ceremonial formality that consummated the process of integration already initiated with the execution of the Instrument. Therefore, re-evaluation of the Instrument has become increasingly indispensable for understanding the political status of Manipur in the post suzerainty period.

A paragraph of the Instrument reads thus, ‘I ‘¦ Ruler of ‘¦ in the exercise of my sovereignty in and over my said state do hereby execute my Instrument of Accession and’¦.’ The maharaja apparently executed the Instrument as a sovereign entity. But the question remains if the Maharaja was vested with the sovereign authority to execute such a political transaction? At least two points may be stated in this regard. First, Manipur was not a sovereign entity as on August 11, 1947. It regained its independence and sovereignty only on August 15, 1947 like all the princely states and the two Dominions namely India and Pakistan. Hence, Manipur could not enter into such an Instrument, which assumed the form of an international treaty transacted between two sovereign states. Only a sovereign state can execute such an Instrument. Second, the ruler of Manipur was not a sovereign entity as on August 11, 1947. Even after independence, the Maharaja had become a mere Constitutional head of the state with all the powers and responsibilities transferred to the Manipur State Council since July 1, 1947.  The Maharaja of Manipur in his inaugural address of the first Manipur State Assembly session held on September 18, 1948 had said the following words:

‘I now bring to the notice of the people that I had transferred my powers and responsibilities other than those of a Constitutional Ruler of the State Council since 1st July, 1947 before the lapse of British paramountcy and since then, I have already remained as a Constitutional Ruler.’

Over and above, Section 9(b) of the Manipur State Constitution Act, 1947 would certainly dispel any doubt about the nominal status of the Maharajah, which was expressedly stated thus; ‘The Maharaja means His Highness, the Maharaja of Manipur, the Constitutional head of the state’.

The Maharaja in his capacity as the Constitutional ruler could not execute the Instrument without proper authorization and constitutional endorsement. This was simply on account of the fact that he was not a sovereign ruler and that Manipur was not an independent state then. Therefore, the act of signing/executing the Instrument of Accession on August 11, 1947 by the Maharaja cannot be considered an Act of the State. Hence, the Instrument is deemed null and void right from the moment it was executed.

Now, the question is, could the Maharaja of Manipur execute the Instrument of Accession with the Dominion of India on July 11, 1947? The answer is absolutely ‘No’. The Dominion of India came into existence only on August 15, 1947 with the adoption of the Indian Independence Act, 1947. Section 1 Clause (1) of the Independence Act states thus, ‘As from the fifteenth day of August, nineteen hundred and forty-seven, two independent Dominions shall be set up in India, to be known respectively as India and Pakistan’.

The Maharaja signed the Instrument on August 11, 1947, three/four days before the Dominion of India was set up. It is highly inconceivable that the Maharaja should accede to something which was yet to be born. For example, the Indian Dominion never existed on August 11, 1947. Being so, it can be aptly said that the Maharaja acceded to a political non-entity. Therefore, it can be claimed that the Instrument of Accession was never executed in actuality. It was simply pre-judicial and a mere political fiction enacted by the Indian leaders.

A clause of the India (Provisional Constitution) Order 1947 was promulgated by the Governor General on August 14, 1947 by amending the Government of India Act, 1935. After the amendment, the sub-section (1) of Section 6 of the Government of India Act, 1935 provided thus, ‘An Indian state shall be deemed to have acceded to the Dominion if the Governor-General has signified his acceptance of an Instrument of Accession executed by the ruler thereof ‘¦.’

The original copies of the Standstill Agreement and Instrument of Accession signed by Maharaja Budhachandra are still marked ‘Secret’ and are currently with the Ministry of Home, GoI in File Number F/375/48-Public. So far, the GoI has not given access to these two important documents relating to Manipur. The question is why? In order to make the Instrument effective (assuming that the Instrument is valid) it is mandatory or statutory for the then Governor General of India to append his signature on the Instrument within March 31, 1948 as per sub-section (5) of Section 9 of the IIA, 1947. In the absence of his signature, the Instrument has no legality and validity. In this regard, it may be recalled that as per a news item in The Sangai Express dated October 23, 2009, the Humanist Party had written to the Home Ministry to provide a photo copy of the Instrument of Accession way back in 2008. But the Home Ministry has till date refused to provide the same. It is assumed that the signature of the Governor-General is lacking in the Instrument of Accession. Perhaps, it is precisely on account of this reason that the said document remains highly classified.

The Standstill Agreement: Unauthorized Transfer of Paramountcy

On the day of signing of the Instrument of Accession on August 11, 1947, the maharaja also signed another agreement known as the Standstill Agreement. The Standstill Agreement provided for the time being all agreements as to matter of common concerns existing then between the Crown and any native states as between the Dominion of India and the states until new agreements on this behalf were made. By signing the Standstill Agreement Manipur surrendered few subjects like air communication, currency, external affairs, post telegraphs and telephones, etc to the Dominion of India and thereby apparently depriving herself of the independence granted under the IIA, 1947.

Thus, the Standstill Agreement was an agreement by which paramountcy over Manipur was supposedly transferred from the British Crown to the Dominion of India.

In this regard, informed circles have attempted to defend the independent sovereign status of Manipur by citing Clause (3) of the Standstill Agreement which states thus, ‘Nothing in this Agreement includes the exercise of any paramountcy functions’. It is claimed that this particular clause had enabled Manipur to retain its sovereignty. But as stated in the case of the Instrument of Accession, it is problematic to sustain the claim of sovereignty under the Standstill Agreement as well after surrendering key subjects like external affairs, currency and air communication to the Indian Dominion. The internal as well as the external dimensions of sovereignty were seriously jeopardized under the Agreement.

It is also claimed that the IIA, 1947 had superseded the said Agreement. This line of argument though factually correct implicitly acknowledges the validity and legality of the Agreement till August 15, 1947.

Logically, this would imply that Manipur had remained under the suzerainty or paramountcy of the Dominion of India from August 11, 1947 to August 15, 1947. Such a conclusion has the tendency to undermine the distinctiveness of the history of Manipur. Contestation of the validity of the said Agreement therefore, has to be made on more appropriate and reasonable grounds.

Sometimes, it is misunderstood that the Dominion Governments were the rightful inheritors of the native States and that the paramountcy was transferred to the Dominion Governments. Such line of understanding has been substantiated and strengthened by the existence of the Standstill Agreement which purportedly transferred paramountcy of the British Crown over Manipur to the Dominion of India. In this regard, Para 2 of the Memorandum of States’ Treaties and Paramountcy which formed part of the Cabinet Mission Plan needs to be recalled. It states, ‘But the British Government could not and will not in any circumstances transfer paramountcy to an Indian Government’. Reiterating the position of the Cabinet Mission Plan, 1946 Prime Minister C.R. Attlee issued a letter of instruction to Lord Mountbatten in March 1947 wherein he states, ‘His Majesty’s Government does not intend to hand over their (native States) powers and obligations under paramountcy to any successor Government’. Therefore, the signing of the Standstill Agreement was not supported by any statute, Act or law passed by the British Parliament.

Moreover, Manipur was still under the British suzerainty at the time of signing of the said Agreement and the Dominion of India was yet to be born. It is, therefore, highly inconceivable that Manipur had agreed to transfer British paramountcy over it to the Dominion of India without the knowledge and consent of the British Parliament. The transfer of paramountcy, if any, could only be affected by a special imperial legislation enacted by the British Parliament. It is also pertinent to point out that the Agreement was merely a temporary arrangement and did not possess any permanent binding character. The Standstill Agreement is neither a Treaty of Accession nor a Merger Agreement. In case, Manipur failed to accede to the Dominion of India within a reasonable timeframe, the Standstill Agreement naturally became redundant. And since the signing of the Instrument of Accession has been a failed exercise as explained above, the Standstill Agreement has no implications on the political status of Manipur.

In Lieu of Conclusion

Reading between the lines, the signing of the Standstill Agreement and the Instrument of Accession was not valid for myriad of reasons as elaborated above. Besides, the Standstill Agreement and the Instrument of Accession were neither ratified by Manipur nor by the Dominion of India. As per relevant provisions of international law, any treaty without ratification has no binding effect on the contracting parties. Oppenheim writes:

‘Ratification is the term for the final confirmation given by the parties to an international treaty concluded by their representatives and is commonly used to include the exchange of documents embodying that confirmation. Although a treaty is concluded as soon as the mutual consent is manifest from acts of the duly authorized representatives, its binding force is, as a rule, suspended until ratification is given. The function of ratification is therefore; to make the treaty binding; if it is refused, the treaty falls to the ground in consequence.’

Sovereign or not, if Manipur was not a separate political entity, the need to execute the Instrument of Accession would not have arisen at all. The act of acceding to the Dominion of India definitely underscored the pre-existing historical reality of Manipur as a separate political entity. By signing or executing the Instrument of Accession, Manipur supposedly ceded to the Dominion of India the sovereignty over certain subjects. Before that, sovereignty over defense, foreign affairs and communication implicitly remained with Manipur. It is said that Manipur became a part of the Dominion of India by virtue of executing the Instrument. From this it can be inferred that before the execution of the said Instrument, Manipur remained as a separate political entity (assuming that the instrument is a legally valid document). This is further corroborated by the fact of invoking the Extra-Provincial Jurisdiction over the native states by the Dominion of India.

With the lapse of British suzerainty following the adoption of the Indian Independence Act on August 15, 1947, Manipur regained its sovereign independence. Manipur became independent, legally and technically notwithstanding the signing of the Instrument of Accession and the Standstill Agreement on August 11, 1947. Contrary to what many would argue, the option to accede either to the Dominion of India and Dominion of Pakistan was not compulsory but purely voluntary and nowhere in the Indian Independence Act 1947 states that the native states should accede to either of the two Dominions as a matter of statutory obligation.

The claim that Manipur signed the Instrument of Accession on August 11, 1947 and therefore, had acceded to the Dominion of India holds no water as the Dominion of India was born only on August 15, 1947. The transaction of the Instrument of Accession could be undertaken only after the adoption of the Indian Independence Act on August 15, 1947. As far as the Standstill Agreement is concerned, it needs to be pointed out that the transfer of paramountcy was not supported by any imperial legislation of the British Parliament. Moreover, it can be argued that the GoI would not have forced the Merger Agreement on Manipur in 1949 had it felt that the Instrument of Accession and the Standstill Agreement were legally valid documents.

*The article is written by Sanatomba Kangujam.

(Courtesy: The Sangai Express)

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