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III Regions, II Asia, 21 India

Bimal N Patel

From: The Oxford Handbook of the History of International Law

Edited By: Bardo Fassbender, Anne Peters

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved. Subscriber: null; date: 10 December 2022

History of international law — State practice — Law of treaties — International trade

(p. 500) 21  India

1.  Introduction

This chapter examines the history of international law in India between 1500 and 1945 and identifies those principles and practices which have disappeared after the independence of India or have become part of the regional system in one or another way. In other words, this historical analysis is confined to the colonization period when India1 was under the rule of the European powers. One gets struck with the reality of today's prevailing law in India, as the English law enjoys a persuasive authority as an embodiment of written reason, and impresses its own character on a formally independent jurisprudence. The English law has also left lasting impressions on international law as practised by India after the independence. Between 1500 and 1945, international law in India grew up by degrees, completely marked by the absence of any attempt at codifying it, nourished, (p. 501) however, by the writings and thoughts of scholars, and the practice of the princely States.2

What salient features or developments bearing the most important influence on international law as evolved and practised in India can be identified? First, there was a systematic collapse of international law traditions which were observed as a matter of intercourse between princely States with the advent and penetration of British (and to a limited extent French, Dutch, and Portuguese) rule at all levels. In fact, one can observe that between 1600 and 1858, there were hardly any significant achievements noticed except for the preparation of some codes and digests. Since Hindu and Islamic laws have deeply penetrated into the political-socio-legal system of India, those codes and digests which were found to be not in consonance with the original Hindu or Islamic laws disappeared or were replaced during the colonization period. Secondly, much like in the ancient times, princely States3 were convinced that interactions among them were necessary because in isolation they could not make progress or effectively counter the British influence. Various religious festivals and ceremonies, such as Aswamedha, the Rajasuya, the Vajapeya, the Punarabhisheka, and the Aindra Mahabhiseka sacrifices, which were practised in ancient times now were practised in different versions, and these ceremonies significantly enabled the interactions among the princely States and provided avenues for greater interactions between the executive authorities as well as normal people. These mechanisms enabled the princes and officials of princely States to discuss common problems and also were used to reach settlement on differences between them. With the independence of India, these practices have largely disappeared and it remains interesting to see what the means of communication between these princely States in the post-independence Indian history have become, and whether these traditions have had any contributory effect on the relations between the Union of India4 and these (p. 502) princely States. Third, as far as self-determination, plebiscite, and the status of Indian princely States were concerned, these States prior to acceding to India (upon India receiving independence) did not seek the popular mandate of the people, as the princes often refused to recognize their people. As Chacko says, the implied principle in all these refusals apparently was that the sovereigns of the Indian State alone had the power to exercise the legal rights of accession to, or secession from, a political union.5 Modern international law does not recognize such a right by the individual units of any nation to secede from, or accede to another, nation-state. Fourth, the grounds on which paramountcy of the British Empire rested being natural factors of geography, politics, economics, and history, social, religious, and cultural congruity, the method of automatic succession that has taken place may be called natural secession in international law. As the instrument of accession binds entities with a certain measure of sovereign powers, these should be construed as instruments of international law. Insofar as those instruments can function only on the sub-continent of India, they have only a regional value, and hence may be called ‘regional international law’. Fifth, a close reading of the ancient Indian literature like the Srutis, the Dharmashastras and the Arthsastras show clear evidence of means and methods of international law as practised by the princely States. These relations were regulated by certain customs and practices. The history of foreign relations between princely States reveals the classical principles of international law which prevail in the modern world, namely, the rights of existence of self-preservation, of equality, of independence to territorial supremacy, of holding and requiring territory, of intercourse, and of good name and reputation. Some of the rights associated with the independence of a State were the power to exclusive control of its own domestic affairs, the power to admit or expel aliens, privileges, and immunities of diplomatic envoys in other States, and exclusive jurisdiction over crimes committed within its territory. The duties were the duty not to resort to war, to fulfil treaty obligations in good faith, the duty of non-intervention, the duty not to perform acts of sovereignty on the territory of another State, the duty not to allow in its territory preparations which are prejudicial to the security of another State, the duty not to intervene in the affairs of another State, and the duty not to foment civil strife in another States’ territory. These rights and obligations exercised and fulfilled by the princely States originate from the religious scriptures of India, and thus one could see that despite the European influence and the need for princely States to collectively defend their independence (or obtain one), these legal principles and norms were practised and nourished by them.6 The current international law which is being practised by India as an independent nation can be (p. 503) considered to be a product of changes that took place in the society as well as principles and practices, which are slowly disappearing from the states institutions and life, and acquiring new meanings and shapes and influencing the new international law. In fact, the independent India has greatly benefited from the practices of princely States, which were themselves fully fledged States meeting the fundamental criteria of a State as provided in the Montevideo Convention.7 By studying the practices of these princely States,8 one is better equipped to understand the emergence of international law principles. It is remarkable that long before Hugo Grotius, the so-called father of modern international law, Ashoka the Great, tried to give by his actions a concrete shape to those ideals and principles, whose defence and vindication have become the first concern of international law in current international affairs.9

2.  Principles of International Law Observed by the Princely States

The princely States strictly observed that each State has a will which is completely independent and free from external influences. But through the process of auto-limitation a State can restrict its powers and thereby limit its will. In short, the practice shows that they considered themselves not bound by international law because they were independent and sovereign but they can make themselves bound by rules of international law by restricting its powers. This auto-limitation theory is based upon a presumption (p. 504) that there exists a state will that, in fact is nothing but the will of the people who comprise it. The princely States’ practices show that it was primarily the will of the ruler which was the will of the State. The period under examination also clearly shows that consent was (and still is) a basis of inter se relations between these States, that is, international law. Thus, the modern international law which recognizes the importance and utility of consensus as a basis of obligation in international law was the essential precondition of inter se relations during this period. In fact, the theory of consent as the basis of obligations widely prevailed in princely States’ inter-state relations and was developed to promote their interests. Natural law had the greatest influence in their relations and practice of these States shows that they considered the natural law to be of universal application.10 Princely States observed norms of inter-state relations because they considered themselves as independent States and were recognized as such by other princely States.11 The inter-state relations were largely governed by a body of rules of law—international law—to govern their conduct as members of that community. Furthermore, while it remains fact that princely States met in general gatherings, outcomes of these meetings are not perfectly documented and preserved.

3.  Disappearance of British Common Law from International Law Practice of Independent India

It has been observed that English common law was applied in many fields by the British Empire during their colonization of India. Upon independence, the Constitution of India did not alter that practice but provided for the continued operation of the law as it had been in force immediately before the entry-into-force of the Constitution. Therefore, in analogy with English common law, the municipal courts of India would apply the common law principles of international law, as well as the recognized principles of international customary law as a part of the law of the land. However, this continuity was short-lived because with the passage of time, several new laws came into being immediately after independence and they clarified or codified (p. 505) some of the international customary law principles into national law. The judiciary of India also played an important role in holding or rejecting the applicability of English common law jurisprudence, inter alia, including then-prevailing and practised international law into Indian laws.12

4.  The Doctrine of Equity, Justice, and Good Conscience

The application of the doctrine of equity, justice, and good conscience in India was marked by two characteristic features. Firstly, the application of personal laws to Hindus and Muslims was limited only to a few matters; namely inheritance, succession, marriage, and other religious usages and institutions, while all other cases were to be decided according to the customs followed by the community to which the suitors belonged. Secondly, the practice followed by the British Crown's courts and the East India Company's court greatly differed in this regard. The Crown's court applied personal law only to Hindus and Mohammedans and all other persons were adjudged by the English law which was lex loci in presidency towns. On the other hand, the East India Company's courts in Mofusils decided the cases of persons other than Hindus and Mohammedans according to customs and usages followed by the community to which they belonged. The cumulative effect of such a dual application of the doctrine of equity, justice, and good conscience was that it greatly helped the development of different branches of law in India through judicial legislation. This doctrine, which is obviously more applicable in private international law than public international law, is unique to the Indian sub-continent and still remains valid. The Shrutis, the Smritis, the Dharmashastras, the Arthashastras, and the Puranas establish that the States of ancient India had inter-state, or international, relations among themselves. These relations were carried out according to well-established customs, usages, and principles of life based on the Advaita system of philosophy.13 These sources of international law continued to guide the relations of princely States.14

(p. 506) 5.  Treaties as a Source of Regional International Law

The domain of operation of the treaties considered here was the sub-continent of India, and directly concerned only the British government, the British Indian government and the Indian States. The conclusion of these treaties was a procedure recognized by and observed under the generally accepted rules of international law governing international instruments. But the moment they came into effect, their scope became regional in character. It can be seen that India, like many developing countries, resisted accepting the validity of the customary international rule of law, so well recognized by the European powers, which permitted the latter the right of acquisition of non-Christian territory by discovery and occupation. It insisted that that part of international law which gave expression to the pattern of domination be no longer recognized. The theory of terra nullius, according to which the territories not in possession of a Christian prince were subject to acquisition by Papal grant or by discovery and occupation was not palatable to India.15

5.1.  Sources of International Law in Pre-1945 India

There is sparse literature about how the princely States treated customary rules of international law in a domestic setting and what were their approaches in case customary rules of international law conflicted with domestic law. Treaties were the most important sources of inter-state law. We find an enormous amount of references to various treaties concluded between princely States and other States, and British India and other nations. However, the determination and interpretation of treaty provisions rested with the kings and not with judiciary. Treaties were negotiated and the States confirmed to be bound by the obligations flowing from those treaties. In independent India, treaties were negotiated by the executive and ratified by the cabinet, except a few cases which found ratification of the parliament and where the judiciary acquired an independent role in interpreting the obligations of the Indian State. Thus, the earlier customs which were widely followed among the princely States disappeared with the independence of India. In other words, the negotiation, execution, and interpretation of pre-1945 and post-1945 treaties were all (p. 507) markedly different. Did all elements of custom (such as long duration, uniformity, and consistency, generality of practice, opinio iuris sive necessitatis) exist in pre-1945 India? One can find that the motives of fairness, convenience or morality were more prevalent in pre-1945 inter-state relations. These motives have disappeared. Customary rules of international law in pre-1945 India developed as a result of diplomatic relations between princely States and British India and treaties between princely States, while the current customary international law also is developed as a result of practice of international organs and state laws, decisions of state courts and state military or administrative practices. There was no ‘inter-state organization’ comparable to the current world in the form of the UN. It is observed that courts in pre-1945 India made decisions based upon considerations of fair dealing and good faith, which may be independent of or even contrary to the law. Inter-state comity was another source of development of inter-state law. A number of matters of the governments of respective States were resolved on the advice of their legal advisors. In the pre-1945 period, these advisory opinions were one of the most important sources of inter-state law.

5.2.  Sources of International Law in Ancient India and their Influence on Post-Independence India

Dharma in ancient India was not solely the deliberate creation of lawgivers and legislatures but largely social custom and practices observed under fear of divine sanctions. The sources of ancient Indian laws were revelations (Sruti, the Vedas), the tradition (Smritis or Dharmshastra), and the practice of those who knew the Vedas or customs (Acahar). Custom was an important source. It was considered to be a mixture of inter-caste practices. One of the critiques is that in the case of the ancient States of India there is little that is available on the nature of acts or statutes, or opinions and decisions of judicial forums. The writers and jurists of the princely States developed the law of nature in accordance with the values and conventions of their age. According to them, if there was a conflict between positive law and natural law, the latter would prevail. Even if we are critical of that finding, it must be admitted that natural law emphasized the importance of certain ideas and values lying ‘behind’ positive rules. India, having deep-rooted natural law traditions, embraced and developed human rights law and a system of punishment of war crimes, due to the influence of natural law. Thus, the idealist character of natural law has greatly influenced the pre-independence international law among the princely States. The Indian civilization and state practice demonstrates heavy emphasis on the rule of morality. In fact, the Indian legal literature has combined and explained the rule of law and the rule of morality as one. Thus, the Western (p. 508) philosophy which is captured in Oppenheim's definition of a legal rule16 shows that a rule of morality is a rule which applies to conscience only and cannot be enforced by external powers, whereas the Indian traditions and practice read and practice both together. Regardless of periodization, the Indian policy-makers and rulers have given considerable weight to moral arguments. While the Western nations will appeal to the precedents, to treaties, and to opinion of specialists, Indian writers would appeal to the general feeling of moral rightness, as based on the long civilization history of India.

In Islam, it was believed that the law binds individuals rather than territorial groups. Thus Muslims wherever they went were under the jurisdiction of the Islamic State, as jurisdiction in Islam was based upon the personal rather than the territorial principle. This approach was bound to conflict with the development of inter-state law insofar as every State has a territory and exercises jurisdiction over its nationals and the concept of the latter, has primarily been territorial. However, as the ruler of an Islamic political unit, who was more often than not a monarch, was also bound by the Islamic law and movement beyond the territories of a State without the monarch in command was rare, this lacuna need not be exaggerated, particularly in an age when jurisdiction could be personal also. This legal principle which has been in existence since the Islamic civilization does conflict with present principles of international law; India, being the second largest Muslim country, and Indian Muslims follow this principle. Thus, as far as India and Indian Muslims are concerned, one can discern two approaches to international jurisdiction.

6.  Concepts of International Law

6.1.  Sovereignty

Although sovereignty in a unique form continued to exist in pre-1945 India, it shall be noted that the attitude of princely States towards international law, to employ the modern terminology, constituted a community-oriented consensus towards the fulfilment of international obligations rather than a sovereignty-oriented consent. As (p. 509) India was constituted from hundreds of princely States, the community approach of these princely States toward the British authorities continued to exist.17 Sovereignty had a different meaning in 18th-and 19th-century India than it has now. The 18th- and 19th-century India had an active acceptance of double allegiance: In the native States of India, there existed a double allegiance of their subjects. The native rulers themselves were the subject of the Indian government. The natives of protected States owed not only allegiance to them, but also certain duties, ill defined, to the protecting State. This was typical of the Indian subcontinent, but this notion of sovereignty has disappeared in the modern State of India. It is observed that:

[T]he East India Company itself acted under two very dissimilar sorts of power, derived from two sources very remote from each other. The first source of its power is under Charters which the Crown of Great Britain was authorized by the act of Parliament to grant, the other was from several charters derived from the Emperor of the Moghuls. … As to those of the first description, it is from the British Charters that they derive a capacity by which they were considered as a public body, or at all capable of any public function. …18

6.2.  Recognition and Reciprocity

Reciprocity is the basis of current modern international law—no government can accept its legal claims to be honoured unless it demonstrates a corresponding willingness to honour the similar claims of its foreign counterparts. The pre-1945 Indian history shows that the reciprocity was expected by native/princely States vis-à-vis the British government and the East India Company, but the latter did not demonstrate the willingness to honour these expectations as the latter was in a much more powerful position than the former. Hence, with the advent of modern international law after the Second World War, the inequality in reciprocity faded away. In ancient and also during princely States existence, kings exercised full territorial sovereignty over their own lands, but in addition, there were instances in which they exercised limited sovereignty over others—protectorates, spheres of influence, leased territories. In ancient India, recognition came in various ways: when a State, having achieved independence, was invited to participate in great inter-state assemblage like Asvamegha, Vajapeya, Rajasuya.

(p. 510) 7.  International Law Making through Treaties

A treaty was an agreement concluded between by two kings who would exercise treaty-making powers on behalf of their States. It is evident that the kings and princes in ancient and pre-1945 India were regarded as the personification of sovereignty. So when in ancient India a king entered into some sort of transaction with another king, it was really a case of two States and not that of two individuals entering into an understanding or intercourse. In such a case there was no room for doubt that the king concerned was representing the people (in whom alone resided true sovereignty) and his State. This doctrine has lapsed with the emergence of independent India. In fact, the transactions which took place between the kings prior to independence and post-independence evidence this doctrine and must be accorded legal weight. Thus, the principles and norms which were followed by these principalities and constitute a body of conduct among these principalities ought to be considered as rules of international law (if dubbed into current context) or inter-state relations of ancient India.

8.  Select Areas of International Law

8.1.  Criminal Law

An examination of the criminal law system reveals that several principles and practices of the British era have ceased to exist. Prior to the Warren Hastings reforms, in the area of substantive criminal law, the British tended to exercise a much bigger scope of jurisdiction than the current international law recognizes. For example, not only the dacoits but family members of the dacoits were also made slaves and whole villages were fined, all under the disguise of stringent measures which were felt necessary to eradicate the evil of dacoity. The British Empire applied English laws in criminal matters in circumstances which were totally different from those of the English. Similarly, the harshness of English law was a reality in India but the redeeming features of English law and procedure were nowhere to be found.19

(p. 511) 8.2.  Religion and International Law

Prior to independence, the Koran and Shastra were consulted in deciding the disputes among the Muslims and Hindus. With independence, reforms were taking place and although Koran- and Shastra-based rules and norms determine cases such as inheritance, marriage, caste, and other religious usages, a uniform civil code was gradually entering in the legal system of India. The Koran and Shastra were consulted because the judges were Englishmen and they did not have knowledge of personal laws of Muslims and Hindus. Moreover, local traditions and customs of these two dominant communities were required to preserve them from English onslaught. Dharma is the core and centre of Hindu philosophical thought and political theory. It is no wonder therefore that Hindu law began with duties (Dharma) rather than with rights, as in the Western countries. In his study of Kingship and Community in Early India, Drekmeier shows that

[I]n Hindu political speculations, duty occupies the central position that in European thought belongs to conceptions of natural rights and freedoms—we are justified in saying that civil obligations rather than civil rights formed the basis of the relation of state and subject.20

These philosophical pronouncements underpinned the international law practice for the period prior to independence. However, much of today's international law, focused on rights first instead of obligations, is observed by post-independence India. International law in ancient India and pre-1945 may be defined as the body of customary rules or ethical principles based on the philosophy of the Advaita which regulated the relations of Indian States in their intercourse with one another. The above definition implies the following five prerequisites, viz: (1) The existence of sovereign independent States, based on the supremacy and universality of law which was the expression of the philosophy of Advaita; (2) the sanctity of treaties; (3) the existence of sanction; (4) the inevitability of intercourse among such States, and (5) the need for regulating such intercourse.21

8.3.  Human Rights

Is the Indian intervention into neighbouring regions a unilateral use of force, or is it a part of India's rich civilization contributing to the protection and promotion of (p. 512) human rights?22 With the Bangladesh War of 1971, the realization of the need to evolve norms and principles of international law to cover such situations began to dawn. Pre-independent India was full of social problems and evils, some of them were sati (self-immolation by a wife of a husband), the caste system, and untouchability, among others. To eradicate these problems, various social reform movements were launched which also attained measurable success. These social reform movements used to reinterpret the sacred texts of the Hindus and appealed to the conscience of people. Thus, the social problems and reforms have made great contributions to the modern international human rights law.23 The struggle for independence provided equal opportunity to women. The Indian National Congress provided a common platform for men and women to play their role. This exposure empowered women to develop their own individuality and crusade for equal rights. The social reform movement lost its exclusive male basis and orientation, and women themselves founded an exclusively female association: the All India Women's Conference in 1926. They crusaded for various rights of women and advocated equality. Thus, the issues and problems unique to the Indian sub-continent's multiculturalism were addressed by equally unique means and mechanisms. Obviously, problems such as Caste were not found in monoculture societies of the West and the Islamic world. If these means and mechanisms would not have contributed to the typical problems, the universal aims of universal human rights instruments would have been difficult to achieve. In other words, the modern universal human rights instruments would have been devoid of universal or a truly multicultural input. If particularly Indian problems and solutions had not existed, then modern international law would neither have been able to claim universal approach nor would it have been able to appeal the entire human society. The joint family system, which is unique to India, has contributed to modern international business, trade, human rights, and humanitarian law, and many other branches of international law, as one could observe that practices and customs originated and were maintained by the joint family indirectly and directly contributed to the growth of and reflection in the modern international trade practices. It is, however, beyond the scope of this paper to analyse how the Indian joint family systems have contributed to the modern international law. Nevertheless, it must be accepted that the joint family system and principles are reflected in the overall Indian legal and (p. 513) judicial system and jurisprudence which is in tandem and not necessarily in conflict with modern international law and jurisprudence centric to the nuclear family.

8.4.  Cooperation among Princely States: A Prototype of Post-1945 International Organizations?

To address issues of common concern and to find solutions, after the Second World War, the nation states established several international and regional organizations. In ancient and pre-1945 India, as mentioned earlier, various religious ceremonies and sacrifices accelerated the process of such intercourse and strengthened people's conviction that greater and closer intercourse and not isolationism could alone offer dividends in the long run.24 These mechanisms were ad hoc, unlike the concepts of administrative secretariats which are found in the international organizations. By performing these ceremonies on a particular day, the kings and States ensured some form of presence of other kings and state representatives and provided a platform to discuss issues of common concerns and interests on these occasions. Thus, ceremonies are nothing but ‘annual conferences’ of general bodies to meet and discuss the progress and chalk out a future course of action. When the kings met, they exchanged words of sympathy and fellow-feeling. Thus, these occasions served to strengthen inter-state amity and to ensure cooperation among States.

8.5.  War and Peace

Princely States followed what Kautilya's advice commended a few hundred years before. For self-preservation, any mode of war is justified, including a peace treaty (Sandhi), Mantra Yudha, a war of intrigues (Cold War), and Kutayudha and use of barbarous tribes.25 Modern international law imposes limitations and prohibitions as far as means and methods of warfare are concerned; however, the element of righteousness is uniquely found in the Indian history of warfare and worth re-examination today, especially when States resort to non-prohibited means of warfare but still have no regard for the righteousness of those means. Indian writers such as Kautilya, Kamandaka, and Manu all opposed war because of moral and (p. 514) economic considerations, but as a last resort, going to war was not dismissed as an option. In ancient India, it was a practice to declare war if and when it became unavoidable. The declaration was crucial in India as it paved the way for the enemy to prepare for war.26 The Indian custom of giving notice before engaging in battle27 disappeared in the modern rules of warfare.28 Prior to 1500 and even during 1500–1945, the rules of warfare observed by Indian kings and princely States were unique to Indian civilization and have made a significant contribution to modern international humanitarian law. These rules of warfare are genuine evidence of ancient chivalry and priestly influence and preaching. This is typical of the Indian civilization. There were strong religious sanctions for the observance of these rules, with penalties for breaches in this world and the next (to be experienced after reincarnation). As far as the rights to armed intervention either unilaterally or collectively in the modern day are concerned, one can find good reflections of similar reasons for intervention in the 1500–1945 India.29 The modern concept of international law is essentially based on one uniform set of rules which governs all belligerents in a war. We have such a concept at present that is, the Geneva Conventions of 1949,30 which have a universal application irrespective of considerations of different civilizations or opposing political ideologies of different States. This could not be said of medieval India, which became a battle ground of two civilizations, each having its own laws to govern inter-state conduct. Independent India has witnessed the disappearance of many principles and practices which were found in the Hindu scriptures and (p. 515) princely States’ functioning.31 Under the Regulating Act of 1773,32 the administration of India was centralized by making provisions for the appointment of a Governor-General and a council of four. Regarding the right to commence war or negotiate peace, the following provisions were made in the act: normally the subordinate presidencies could commence war or negotiate peace only with the consent of the Governor-General, but they could do so without the consent of the Governor-General when there was very urgent necessity provided they received orders directly from the Court of Directors of the British East India Company.

8.6.  Trade, Commerce, and Economy

A rural economy and the self-sufficiency of the village communities, which were to a certain extent disintegrated during the British rule, are typical of the Indian sub-continent. The principle of international commercial, trade, and business run contrary to the objective of self-sufficiency, according to Adam Smith, David Ricardo, and John M Keynes, and the economic principles of world economic integration and interdependence they advocated. During the British rule, a slow but steady emergence of a tax regime consolidated to meet the needs of the British colonial administration. At the same time, the rural credit and the business of the moneylender, or micro-financer, emerged. This is a unique economic system applicable in India which finds resonance in current international financial and fiscal policies and principles. New versions with new means and mechanisms of financing have emerged but the principle and effective working system can be traced back to the Indian rural economy prior to independence. The British colonization led to the breakdown of the economic and social fabric of Indian self-sufficient village communities and the transformation of the whole pre-capitalist feudal economy of India into a capitalist economy. In other words, the rural economy of India was not powerful enough to withstand the forces of global capitalism. Even when all obstacles to cooperation were overcome under the pressure of the growing volume of trade, there remained the traditional reluctance of East Indian rulers to conclude treaties, a reluctance which has its roots in ancient traditions of Hindu polity. This shows a preference for (p. 516) informal and less legalistic relations which first disappeared but resurfaced again in the post-colonization period. It is easier to obtain a unilateral grant than to receive any concessions by treaty which is considered a limitation to the sovereignty of the conceding ruler. This shows an East versus West approach to international law.

9.  Executive and Judiciary Powers

In pre-colonial and ancient times, even during the early British colonization, there was no clear distinction between the executive and judiciary. The king exercised the executive and judicial function even in inter-state relations—the latter has disappeared with the advent of colonization. During the pre-independence phase, the high courts were not the interpreters and guardians of the fundamental rights which were prevailing in European nations; they were to have civil, criminal, and appellate jurisdiction. With independence, foreign relations were determined by the executive at federal level, hence the role of high courts significantly diminished in settling international disputes. The law declared by the Privy Council in the pre-constitution period is still binding on the High Courts except in those cases where the Supreme Court of India has declared law in its judgments. The contribution of the Privy Council to statute law, personal law, commercial laws, and criminal laws is of significant importance. Since these laws have been gradually expanded and codified, one could still see the impact of the Privy Council on international law practice as followed by India in these areas of law. It must be noted that until the Supreme Court of India takes a different view, the view taken by the Council is still binding—this particular stare decisis is applicable in India and a unique characteristic of regional law of India.33 After the establishment of the Supreme Court on 26 January 1950, the decisions of the Privy Council have no compelling force on the court but are entitled to great respect.34 Henceforth, the Supreme Court can decide independently.35 The high courts are however bound unless they can point to a Supreme Court decision to the contrary.36 As Indian high courts are frequently required to enforce and interpret (p. 517) international law, it can be concluded that this ratio also applies to the international law cases and disputes in the jurisdiction of the High Courts of India. The jurisdiction of the Admiralty Court, established pursuant to the Charter of 1683, was not confined to mercantile and maritime cases as it was envisaged by the Charters of 1683 and 1686, but its jurisdiction was extended to civil and criminal cases. It became a general court of the land and the Supreme Court of the settlement. This practice ceased to exist with the independence of India. Admiralty Courts are no longer required to perform these tasks, but concentrate only on maritime and mercantile transactions and cases, as well as forfeiture of ships, piracy, trespass, injuries, and wrongs.

India's history until 1947 suggests that there was no clear separation between the executive and judiciary. The judiciary was under the control of the executive. Kings and princes were the law makers as well as law interpreters. Due to these historical reasons, the question of judicial independence did not arise in pre-independence India.37 Thus, the foreign relations between Indian States and the settlement of disputes between the kingdoms or princely States were dealt with by the executive only. Various attempts were made by Great Britain during the colonization period to address difficulties and disputes arising between princely States and between princely States and individuals. However, none of these attempts provided a long-term solution which could be accepted by the rulers and population at large. During the judicial reforms (1787–93) by the British General Charles Cornwallis, attempts were made to ensure that all subjects received free and impartial justice. However, these reforms attracted floods of cases against other princely States and British institutions and individuals. This led to inordinate delays. Furthermore, Cornwallis entertained a notion that Indians were not worthy of trust. Probably his experience in the field of administration of criminal justice led him to this belief.38 This is not surprising as the Privy Council administered justice to people thousands of miles away. It was separated from the people and their lives, by their customs and traditions. In such circumstances what is surprising is that the administration of justice at the highest level had so few blemishes. The Privy Council tried to inject the principle of equity and common law into the realms of Hindu and Mohammedan law. Quite often the decisions of the Privy Council were not in conformity with the accepted customs of the people. Another criticism is that it was too true to the ancient texts of personal laws and thus was responsible for the stagnation of personal laws of the people of India. The judiciary (p. 518) established in Bombay, Calcutta, and Madras contributed to the confusion and uncertainty regarding the fair and equitable implementation of the rule of law, which had profound implications for independent India. The Indian judges, it appears, did not enjoy equal status with the English judges during the British East India Company rule—a principle which has been abolished since the independence.39 The Admiralty Court had jurisdiction to determine all cases, mercantile and maritime in nature, all cases of trespasses, injuries, and wrongs, committed on the high seas.40 In Madras, the British East India Company established the corporation mainly for the purpose of municipal administration; however, it began to exercise jurisdiction as a court.41 This shows that various mechanisms and various ad hoc institutions were established to resolve the disputes which invariably involved individuals and institutions of various princely States of India, which although under the suzerainty or colonization of the British East India Company, enjoyed independence to a significant extent and were considered states proper. Thus, the old norms and mechanisms for dispute settlement disappeared with the independence of India. The Supreme Court which was established in Calcutta in 1774 had various jurisdictions which involved national and international private and public law and norms. It had original jurisdiction, equity jurisdiction, admiralty jurisdiction, probate, and ecclesiastical jurisdiction and jurisdiction to supervise. With the establishment of the Supreme Court of Calcutta, for the first time the principle of separation of the judiciary from the executive was established in India. This was a major legal milestone in the Indian civilization as up until then, the executive and judiciary were one and no separation of powers existed between the two. The judges until this time were non-professional men, not conversant with the English laws, but who were administering justice according to English law. One could draw the conclusion, therefore, that with the advent of British colonization, the system of administration of justice as practised between princely States and which was exercised by the king collapsed and was largely taken over by non-professional men. (p. 519) These men, not versed in law, could hardly be expected to know international law. This is one of the main reasons why there was a silent collapse of international law during the British era as it was practised before between the princely States. While Indian civilization was subjected to the administration of justice by these non-professional men, Western Europe was seeing the emergence of great international lawyers like Grotius, Bynkershoek, and Vattel among others. Since there was no counter-force practising and administering international law in the Indian sub-continent, the philosophy and rules promulgated by the Western international lawyers came to dominate the international scene. In contrast, before the British era there was a robust practice and administration of justice in the framework of ancient international law traditions of India. Therefore, there had been a counter-force in Asia, but this counterforce collapsed and with it, the great ancient international law traditions in India.

10.  Private International Law

The questions which arose out of the merger of native States mostly relate to the execution of ex parte decrees of the British Indian courts in the courts of the merged States and vice versa. What Lord Selborne had laid down in the well-known case of Sardar Gudayal Singh v Raja Faridkote has become the accepted principle of international law. He observed, ‘in personal action … a decree pronounced in absence by a foreign court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity’.42 And it must be regarded as such by the courts of any nation except in the country by which it was pronounced. The independence of India raised several issues with regards to partition, transfer of property, assets, liability, etc. With regards to the execution of a decree, it was observed that the execution of a decree of the court of one country could be directed not only against property in one dominion but also against the property in another. The principle applies not only for the purpose of passing the decree but also for its enactment. Although this interpretation is not in accord with the ordinary rules of international law, it had become somewhat necessary to meet the new situation. This practice, particularly restricted to India and Pakistan, does not find acceptance in international law but could be very useful, should such circumstances arise again in the future. When an Englishman died, leaving some property in India without leaving any legal representative, the practice followed was that the Governor and council of the town of residence of the deceased sold the property by public auction. The sale proceeds (p. 520) were deposited for the benefit of the legal representatives of the deceased in England. As the courts established in India had no royal authority, this practice of the British East India Company would lead to litigation in England. Often the Company had to pay damages as a result of the orders of the English courts. The Company very much desired to avoid such complications. It requested and was given by the Crown a grant of such powers conducive to the punishing of vice, administration of justice, and a better governing of effects of settlements abroad. This principle has disappeared as the current jurisprudence recognizes a limited right of recognition of foreign decrees in India.43

11.  Conclusion

One may conclude that, unlike many other States of Asia which challenged some of the fundamental tenets of modern international law, India and the native States of India never challenged international law to the same degree. Rules and institutions established and practised in India, China, Egypt, and Assyria in ancient times, have an enormous and lasting impact on the international law. Anand wrote that these earlier legal systems of China, India, Egypt, Islam, or even Greece, were confined to their own civilizations, were not universal, and in any case ‘have left no trace of continuity of history’.44 This remark must be dismissed because it is not mindful of the impact of these civilizations on current international law. When India became independent, it considered itself bound by the existing treaties, at any rate those relating to extradition, boundary issues, and debts, as applicable instruments of international law.45

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  • Sinha, Sri Prakash ‘Perspective of the Newly Independent States and Binding Quality of International Law’ (1965) 14 International and Comparative Law Quarterly 121–31.(p. 522)


1  By ‘India’, I mean British India together with any territories of any native prince or chief under the suzerainty of Her Majesty, the Queen of Great Britain. Under the Interpretation Act of 1889, India ceased to be a cultural or a mere geographic expression and acquired a clearly defined political meaning. The exact number of princely States differs from record to record. For example, Sir Charles Tupper counted 629 feudatory States in 1886, The Imperial Gazetteer listed 693 in 1907, and Edward Haynes speaks of ‘the 718 Princely States in India (c 1912)’. By 1920, the British authorities in Delhi could only count 587; and ten years later the Butler Commission had pared the number down to 562. In the first year of independence, however, the new national government of India recorded a final figure of 584 States, including those that had acceded to Pakistan. <http://princelystatesofindia.com/> (2 April 2012).

2  The definition and meaning of the notion of ‘princely State’ and ‘native State’ have been subject to differences of opinion. For example, Sir William described a native State as ‘a political community, occupying a territory in India of defined boundaries, and subject to a common and responsible ruler who has actually enjoyed and exercised, as belonging to him in his own right duly recognized by the supreme authority of the British Government, any of the functions and attributes of internal sovereignty. The indivisibility of sovereignty does not belong to the Indian system of sovereign states, … but the sovereignty of Native states is shared between the British Government and the Chiefs in varying degrees.’ Sir William Lee-Warner Native States of India (MacMillan & Co London 1910).

3  In 1928–29, 235 of 562 Indian principalities came under the category of States proper while 327 were grouped together under the heading of ‘estates, Jaghirs and others’. Thus, it is impossible to identify the norms and rules of international law proclaimed and adopted by these States individually. M Ramaswamy ‘The Indian States in the Indian Federation—A Juristic View’ (1940) 3 The University of Toronto Law Journal 301–22 at 302.

4  Before the Islamic conquest, India never became a really centralized political entity but was characterized by widespread decentralization. Inter-state relations in the pre-Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard, of neutrality, and permanent or semi-permanent diplomatic relations. These rules were expressed in treaty law as well as in customary law embodied in religious charters.

5  CJ Chacko ‘India's Contribution to the Field of International Law Concepts’ (1958) 93 Recueil des cours 117–222 at 196.

6  J Briggs (Transactions of the Royal Asiatic Society of Great Britain and Ireland) underlines the importance of the correspondence as a historical document and praises the high qualities of the Marathas, particularly the religious tolerance of the Hindus.

7  Convention on the Rights and Duties of States (adopted 26 December 1933, entered into force 26 December 1934) 165 LNTS 19.

8  Starting in the late 18th century, the British rule brought India into the framework of a new empire. The foreign relations of India were controlled and governed in London. The British Empire started depriving the princely States of their external sovereignty by various means and methods. Different from the pre-colonization period, their mutual relations were no longer based on international law proper. However, the princely States retained external sovereignty in their relations to States outside India, to be precise to European powers. In contrast, the commercial and cultural relations to non-European powers were based on principles and practices (customs) which were found to be mutually agreeable to the Indian and non-European States. Accordingly, it is wrong to say that the princely States cannot be considered as States in the sense of the current terminology of international law because of alleged lack of external sovereignty.

9  This issue was discussed in the 1960 seminar at Delhi University about the contribution of Indian traditions to the development of international law. However, this seminar failed to discuss when exactly Indian traditions of inter-state conduct were still capable of exercising a direct influence on the global system of the law of nations. These traditions came to an end with the collapse of the independent state system in India at the end of the 18th and the beginning of the 19th century. CH Alexandrowicz ‘Grotius and India’ (1954) 3 Indian Yearbook of International Affairs 357–67.

10  Today we believe that consent of States is a must—States are bound by rules of international law because they have consented to them. However, this practice did not prevail among the princely States. See HA Smith Great Britain and the Law of Nations (PS King London 1935) vol 2, pt 1, at 12–13.

11  This is again a proof of what Brierly said: ‘The ultimate explanation of the binding force of all law is that man, whether he is single, individual or whether he is associated with other men in a State, is constrained in so far as he is reasonable being, to believe that order and not chaos is the governing principle of the world in which he has to live.’ JL Brierly The Law of Nations (6th edn Clarendon Press Oxford 1963) at 56.

12  SK Agrawala ‘Law of Nations as Interpreted and Applied by Indian Courts and Legislatures’ (1962) 2 Indian Journal of International Law 431–78 at 433.

13  According to Bandopadhya, these customs, usages and principles of life were compendiously called the Desh Dharma. P Bandopadhyay International Law and Customs in Ancient India (Calcutta University Press Calcutta 1920) at 16.

14  The authority of Sruti is primary, while that of the Smriti is secondary. Sruti literally means what is heard, and Smriti means what is remembered. This shows the distinction between hard laws and soft laws in ancient India.

15  S Prakash Sinha ‘Perspective of the Newly Independent States on the Binding Quality of International Law’ (1965) 14 The International and Comparative Law Quarterly 121–31 at 125; WS Armour ‘Customs of Warfare in Ancient India’ (1922) 8 Transactions of the Grotius Society 71–88.

16  Oppenheim suggests that ‘a rule is a rule of morality if by common consent of the community, it applies to conscience and to conscience only; whereas, on the other hand, a rule of law if by common consent of the community it will eventually be enforced by external power.’ L Oppenheim International Law (H Lauterpacht ed) (8th edn Longmans, Green & Co London 1955) vol 1, at 8.

17  It is in this light that one should see India's leadership of the Movement of Non-aligned States (NAM) which challenged the sovereignty-oriented principle of consent, deeply rooted in the Western countries, by advocating a community-oriented consensus.

18  Sir J MacDonell ‘Sovereignty’ in The Encyclopaedia Britannica (Encyclopaedia Britannica Company New York 1911) vol 25, 519–23.

19  That experience must be remembered when assessing the fact that India, together with China and other nations, does not recognize the jurisdiction of the International Criminal Court for regions and realities which are far away from the physical seat of that institution.

20  AK Pavithran ‘International Law in Ancient India’ (1973) 5 The Eastern Journal of International Law 220–42 at 230.

21  It should be noted that inter-state rules and principles provided for religious sanctions rather than legal sanctions as understood in the West.

22  As Frank and Rodley observe, ‘international law, as a branch of behavioral science as well as normative philosophy may treat this event as the harbinger of new law that will henceforth increasingly govern inter-state relations. Perhaps India's example by its success has already entered into the nations’ conscious expectations of future conduct.’ TM Frank and N Rodley ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force’ (1973) 67 American Journal of International Law 275–305 at 303.

23  To promote and protect the rights of women, the UN has established various treaties and institutions. Similarly, in the pre-1945 period, several institutions were established in India to secure women a respected and proud place in society. Organizations like the Servants of India Society, Ramakrishna Mission, and Vishwabharati have done a great deal of work for the education of women to achieve the same ideals which much later were expressed in international instruments.

24  International organizations were already conceptualized in the Kautilya period. Confederations of States appeared in the Indian sub-continent in the 18th century, to mention only the Maratha State, an association of rulers under the supreme government of the Peshwa at Poona. Moreover, the Moghul empire at the stage of its decentralization in the 18th century became a composite entity similar to the Holy Roman Empire. ‘Grotius and India’ (n 9) 309.

25  ibid 32.

26  This practice has ceased to exist especially in modern international law. The wars in Iran and Iraq, Afghanistan, former Yugoslavia are all cases in reference.

27  The beauty of Indian customs was that initially the envoys would be dispatched with the messages and if the opposite party denies, then a day, keeping in view the climatic conditions and auspicious day will be announced for battle.

28  Temperamenta belli: rules for warriors were clearly laid out and practised by the warriors.

29  Interventions were not outdated but practised even during the 1500–1945 for various reasons, some of which are also accepted in modern international law: (1) intervention on the basis of an implicit previous understanding; (2) intervention in self-defence, ie to ward off an imminent danger to the intervening power; (3) intervention on the ground of humanity; (4) intervention to prevent continued misrule in a state; (5) intervention in order to preserve the balance of power; (6) intervention by one or more powers at the request of one of the parties to a civil war. Indian rulers were fully aware of unjust battle or unrighteous warfare. And their distinction of a righteous war from an unrighteous war strikingly resembles the Grotian concept of just war. H Chatterjee International Law and Inter-State Relations in Ancient India (Mukhopadhyay Calcutta 1958) at 4.

30  Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 (Geneva Convention I); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (Geneva Convention II);Geneva Convention relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135 (Geneva Convention III); Geneva Convention relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 (Geneva Convention IV).

31  For example, the dead body of a defeated king was returned to his home country. The classic example is the return of the body of Biswas Rao by Ahmad Shah Abdali after the battle of Panipat of 1761 ad, although according to the Durrani tradition the body should have been taken to the conqueror's country. In this context, it may be worth mentioning that in some cases when the law of the victorious State was more liberal than the law of the victim State, the victorious State renounced its liberal law in favour of the law of the victim State in order to retaliate. N Singh ‘International Law in India (II): Mediaeval India’ (1962) 2 Indian Journal of International Law 65–82 at 71.

32  An Act for Establishing Certain Regulations for the better Management of the Affairs of the East India Company, as well in India as in Europe 1773 (UK) 13 Geo 3 c 63 (‘Regulating Act’).

33  As noted by Jois, the Privy Council's contribution and model is of eternal value, and a source of inspiration to all those concerned with the administration of India. R Jois Legal and Constitutional History of India (Fred B Rothman Bombay 1984) vol 2, at 198.

34  Chief Controlling Revenue Authority v Maharastra Sugar Mills Ltd AIR (1950) SC 218; State of Bihar v Abdul Majid AIR (1954) SC 245.

35  Srinivas v Narayan AIR (1954) SC 379.

36  Pandurang Kalu Patil v State of Maharastra (2002) 2 SCC 490.

37  In the early days, the administration of justice in the settlements of the East India Company was not much developed. There was no separation between the executive and the judiciary. The judiciary was under the control of the executive, and the judges were not trained in law.

38  It is unfortunate that General Cornwallis did not appreciate the fact that corruption was not confined to the Indians—the English servants were equally, if not more, corrupt. It has been observed that the American and the British subjects were excluded from the jurisdiction of the Indian judges. The reform introduced by Bentick was a great step forward in the ‘Indianisation’ of the administration of justice.

39  They were not counted for the purpose of the quorum of the court fixed at three (there were five English and four Indian judges, who were called Black Judges). In the record of each day's proceedings, the name of each English judge was specifically mentioned but the Indian judges were collectively described as ‘black justices’. The Indian judges played more or less a subsidiary role similar to that of assessors. Their main function was to acquaint the English judges with the local manners and customs and the caste systems of the local people. Legal and Constitutional History (n 33) 11. At times, the Governor and Council would also postpone cases involving serious crimes as they were aware of their lack of knowledge. Therefore, hesitation and delay continued.

40  It had to decide cases according to the rules of equity and good conscience and the laws and customs of merchant law. Although all States are free to use the high seas, and although Queen Elizabeth of England emphasized in 1580 the freedom of the high seas and the principle that no State can claim sovereignty over them, the British East India Company challenged that concept because the Admiralty Court tried to exercise jurisdiction over the high seas too.

41  It should be noted that the mayor's court exercised jurisdiction over European as well as Indian people, including in cases concerning religious matters. Incidents such as the conversion of a Hindu Woman (in 1730), the Oath in Bombay, Madras clearly attest to this practice of the mayor's court.

42  ‘Law of Nations’ (n 12) 451.

43  Legal and Constitutional History (n 33) 16.

44  RP Anand Development of Modern International Law and India (Indian Society of International Law New Delhi 2006) at 1.

45  MK Nawaz ‘International Law in the Contemporary Practice of India: Some Perspectives’ (1963) 20 World Rule of Law Booklet Series 275–90 at 281.