Vol. 12 · pages 221–225

200 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES conclusion that Paramountcy could not be transferred to an Indian Government. To say the least the argument is purile. The Existence or non-Existence of such a provision in the Government of India Act is quite beside the point and proves nothing. The non-existance of the clause does not prove that India can under no circumstances claim the right to advice the Crown in regard to the exercise of Paramountcy. Its existence in the Government of India Act does not mean that such a power was vested in it during 1833 to 1935 when it formed part of the Act for, that very clause contained the proviso whereby the Governor-General in Council was required to pay due obedience to all such orders as may be issued from the Secretary of State which means, even during 1833 to 1935, the ultimate authority to advice the Crown in the matter of the exercise of the prerogative was the Secretary of State for India in British India. The different methods of disposing of Paramountcy adopted in the various Acts passed by Parliament relating to the governance of India between the 1833 to 1935 do not and cannot in any way affect the claim of the Indian people to advise the Crown in the exercise of Paramountcy. Under the Constitutional Law of the Empire only when a country has become a dominion, that it can claim the right to advise the Crown and the fact that before it became a dominion the Crown was differently advised is no bar to its claim. In the 1935 Act, India was not a country with responsible Government. But even if it was, India could not have claimed to advise the Crown in regard to the exercise of its prerogative rights regarding Indian States. This is because the Constitutional Law of the British Empire makes difference between responsible Government and Dominion Status. In responsible Government, the right of the Cabinet to advise the Crown and the obligation of the Crown to accept it is confined to cases of the exercise of the prerogative arising out of the internal affairs of the country. As to external affairs the British Cabinet retained the right to advise the Crown. But in the case of a Dominion, the Crown is bound to accept the advise of the Ministry with regard to all cases of the exercise of the prerogative whether it relates to internal affairs or external affairs. That is

201PARAMOUNTCY OF THE STATES why a dominion can make a treaty with a foreign country without the intervention of the British Cabinet. The fact that the Government of India was not permitted to advise the Crown in the exercise of its rights of Paramountcy does not mean that there is any inherent Constitutional incapacity which disentitles her from claiming the right to advise. The moment India gets the Status of a Dominion it automatically acquires the capacity to advise the Crown on Paramountcy. What has been stated above is no more than a summary of the Constitutional Law of the British Empire and the process of its evolution showing how a part of the Empire which acquires the Status of a Dominion becomes vested with the exclusive right to advise the Crown in the exercise of its prerogative. Why should this right be denied to India when she becomes a Dominion it is difficult to understand. On parity of reasoning, India should get the right to advise the Crown in the exercise of its prerogative as did Canada, Australia, South Africa and Ireland. That Prof. Holdsworth came to a different conclusion is due not to any difference in the fundamental propositions of Constitutional Law stated above. Indeed he accepts them in toto. The reason why he came to a different conclusion is because he posed quite a different question for argument. The question posed by Prof. Holdsworth was whether the Crown could cede or transfer Paramountcy to an Indian Government. This is not the real issue. The real issue is whether the Indian Dominion can claim the advise to the Crown in the exercise of Paramountcy. In other words, we are not concerned with the question whether Paramountcy could be transferred. The issue with which we are concerned is how Paramountcy can be exercised. I am sure that if Prof. Holdsworth had realised what the real issue was, he could not have come to a different conclusion. So far I have dealt with one part of the Cabinet Mission’s statement where they say that the Crown could not transfer Paramountcy to an Indian Government. There remains for consideration the other parts of their statement in which they say that the Crown will not transfer Paramountcy to an Indian Government. According to the Cabinet Mission, Paramountcy will lapse. This is a most astounding statement and runs

202 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES contrary to another well-established principle of the Constitutional Law. According to this principle, the King cannot surrender or abandon his prerogative rights. If the Crown cannot transfer Paramountcy the Crown cannot also abandon it. The validity of this principle was admitted by the Privy Council in The Queen vs. Eduljee Byramjee decided in 1840 and reported in 5 Moore’s P.C. p. 276 wherein they said (p. 294) that the Crown could not even by charter part with its prerogative. It is, therefore, obvious that the statement made by the Cabinet Mission that the Crown will not exercise Paramountcy is contrary to the Constitutional Law by which the Empire is governed. The Crown must continue to exercise Paramountcy. It is of course true that the Crown can surrender its prerogative if permitted to do so by express statutory authority. The question is whether it would be legal and proper for the British Parliament to make a Law permitting the abandoning of Paramountcy. It would be open, I am sure, for Indians to argue that such a step by the British Parliament would neither be proper nor legal. It would not be legal for the simple reason that after India becomes Dominion, the Statute abrogating Paramountcy can be passed by the Dominion Parliament of India and the British Parliament would have no jurisdiction in this matter at all. Again a Statute passed by the Parliament of the Great Britain abrogating Paramountcy would be improper. The reason is obvious. The army is the ultimate sanction for Paramountcy. This army has been the Indian Army for which British India has paid all along. Without the powerful army maintained by British India which was placed at the disposal of the Crown through his agent the Viceroy and Governor-General of India, the Crown would never have been able to build up and conserve the powers of Paramountcy. These powers are of the nature of a Trust held by the Crown for the benefit of the people of India and it would be a gross breach of trust on the part of the British Parliament to pass a statute destroying this trust. Paramountcy is an advantage which is secured to it by treaty with the Princes. Independent India can, therefore, make valid claim for the inheritance of Paramountcy. A question may be asked : What happens when India become Independent. The Crown disappears and the question of advising

203PARAMOUNTCY OF THE STATES the Crown does not remain. Can Independent India claim to inherit the prerogative rights of the Crown ? The answer is yes. She can. Independent India will be a succession State. For an answer to this question one must look to the provisions of International Law relating to succession among States. Oppenheim admits that a succeeding State can inherit certain rights of the preceding State. From Hall’s International Law, it would appear that among other things, property and advantages secured to it by treaty can be inherited by a succession State. India as a succession State she can inherit certain rights. On this point the following extracts from Hall’s International Law are relevant : “And as the old State continues its life uninterruptedly, it possesses everything belonging to it as a person, which it has not expressly lost; so that property and advantages secured to it by treaty, which are enjoyed by it as a personal whole, or by its subjects in virtue of their being members of that whole, continue to belong to it. On the other hand, rights possessed in respect of the lost territory, including rights under treaties relating to cessions of territory and demarcations of boundary, obligations contracted with reference to it alone, and property which is within it, and has, therefore, a local character, or which, though not within it, belongs to state institutions localised there, transfer themselves to the new state person.” The conclusion is that the Indian States will continue to be in the same position when India becomes Independent as they are now. They will be sovereign States to the extent they are, but they cannot be independent States so long as they remain under the suzerainty, as they must be, either of the Crown, if India remains a Dominion and under the suzerainty of the succession State, if India becomes independent. While the suzerainty remains they can never be independent. The States may declare themselves independent. But they must realise that while the suzerainty lasts and it must continue even when India becomes independent, India will not recognize their independence nor can a foreign State accord them the status of an independent State. The only way by which the Indian States can be free themselves from Paramountcy would be to bring about a merger of sovereignty and suzerainty. That can happen only when the States join the Indian Union as constituent units thereof. The States’ spokesmen ought to know this. But as they seem to have

204 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES forgotten it is necessary to remind them of what happened at the R T C. In the beginning, the States were not prepared to join the Federation. They agreed to join the Federation when they came to know that the Butler Committee had laid down the doctrine that Paramountcy was Paramount. This change of attitude was due to the realization that to the extent the powers comprised in Paramountcy were handed over to the Federation to that extent Paramountcy would vanish. In fact, as most of us know, the Princes did raise the question to the then Secretary of State and asked him that the scope of Paramountcy should be limited to, by excluding the subjects included in List No. I. The then Secretary of State had no answer to give and silenced the Princes by frowning upon them. Apart from the attitude of the then Secretary of State, the point remains that the Princes had seen the point that the dissolution of Paramountcy lay in joining the Federation. That point remains as valid now as it was then. It would be wise on the part of the Indian States to follow that line and not to pursue the mirage of independence. The people of India should, therefore, repudiate the proposition enunciated by the Cabinet Mission that Paramountcy will lapse. They should insist that Paramountcy cannot lapse and that they are the heirs to that Paramountcy and will continue to exercise it, vis-a-vis such Indian States as do not join the Union even after the British have left. The States, on the other hand, should realize that their existence as Sovereign Indian States will not be worth 5 years purchase. It is in the interest of the Princes that they should join the Union and become Constitutional monarchs. Any Dewan who advises his Prince not to join the Union is really acting as the enemy of the Prince. The joining of the Federation will no doubt involve the introduction of responsible Government but it has this advantage, viz., that the Union will guarantee to the Princes the rights relating to dynastic succession which is the most that a Prince can expect. To be independent and to hope to get recognition and protection from the UNO is to live in one’s own paradise. It is doubtful if the UNO will give recognition to Indian States ignoring the claim by India of suzerainty over them. But even if that happens, the UNO will never grant any assistance to an Indian State from external aggression or internal commotion without insisting that the State should first introduce responsible