Vol. 15 · pages 761–765

742 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Pandit M. B. Bhargava (Ajmer): Is there any prohibition there ? Dr. Ambedkar : I shall quote the authorities if my friend wants. I have got plenty of them. I do not want to weary the House : I am only going to give the gist. Treaty making does include cession of territory. In the same way, apart from that particular Entry, the Entry relating to war and peace must necessarily include cession of territory because it cannot be denied that it may sometimes become necessary for a State which is at war with another foreign State, in order to establish peace, to cede a part of its territory as one of the terms and conditions of a treaty of peace. Nobody, I am sure, can challenge or deny that interpretation of the Entry relating to war and peace. Now, if in certain circumstances the Entry relating to war and peace and the Entry relating to treaty making must necessarily include cession of territory, it is quite obvious that the content of these Entries must be deemed to include cession of territory. Therefore, as against the mere fact that in the rest of the body of the Constitution, there is no specific Article conferring specific powers on Parliament to cede territory my contention is that Entries 14 and 15 are quite sufficient.... Shri Kamath (Madhya Pradesh): No, no. Dr. Ambedkar: ......... to endow Parliament with the power to cede territory. My hon. friends, some of them, are shaking their heads saying that that is not correct. But, still, I hold to my view......... Shri Kamath: We also will hold to ours. Dr. Ambedkar: ...... that what I am submitting is a point which has been accepted by all great constitutional lawyers, and by the Supreme Court of the United States where also a similar power exists. Shri Sidhva (Madhya Pradesh): What about our Supreme Court?

743PARLIAMENTARY DEBATES Dr. Ambedkar: Therefore, the first point that I want to submit to the House is that so far as Entries 14 and 15 in List-I are concerned, there is the greatest amplitude of power conferred upon Parliament for the purpose of ceding territory. In view of the fact that certain Members of Parliament seem to be rather unconvinced or not prepared to accept the submission that I am making. I would like to elaborate the point a little further. Hon. Members will remember that the Constitution of the United States is, in a sense a very difficult Constitution, for the simple reason that the States in the United States are much more independent and sovereign than the States which are constituent elements of the Indian Union, in the sense that the powers of the Congress are derived from such powers as have been delegated to it by the States composing the United States. It is a Government of what are called not merely delegated powers, but enumerated powers. There is no such thing as residuary power in the Central Government of the United States such as we have in our Constitution. Taking advantage of this position, namely, that the States in the United States are masters of their territory and the United States Central Government has no authority so far as the territory of the States is concerned, except with regard to certain limited matters handed over to the Central Government, there was a stage in the interpretation of this particular document under which it was contended that although the treaty-making power of the United States Government may include within it the power to cede territory, it could not include the power to cede territory which belonged to the State. In other words, the treaty-making power of the United States was subject to what was called the doctrine of the inherent rights of the States. It may transfer such other territory which it may have, which it may have conquered which are regarded in the United States as territories of the United States, but not as constituent parts of the United States. That doctrine, as I said, was urged for a long number of years in the United States. But ultimately the position taken by the Supreme Court of the United States was that

744 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES the treaty-making power was so unlimted that even a whole State may be transferred and ceded by the United States, if it felt necessary, under the war and peace entry or under the treaty-making power. Shri Kamath: Which particular State was ceded like that ? Dr. Ambedkar: I cannot give you that but I can give the whole volume and the reference too. It is in Willoughby on the Constitution of the United States from page 572 to the end of the volume, I think—it is not very much. It is in Chapter XXXV of the volume, and there you will find all these points discussed. And there is a valuable opinion of Mr. Justice Storey—I think most Members who are interested in constitutional law must be familiar with his name, being one of the greatest authorities on Constitutional law. The chapter begins on page 561, but the particular entries are in paragraphs 311, 312 and the other paragraphs up to paragraph 317. Therefore, my first submission is this that so far as the point raised yesterday is concerned, that Parliament has no authority, I submit that that point has no foundation in law at all, and that this Parliament has ample power to cede territory and as a consequence of the cession of the territory make adjustments within the boundaries of the States of the Union. Now, the question that arises for further consideration is whether it is necessary for the President to have brought this matter before Parliament or whether he could dispose it off purely in his executive capacity. Now, on that point, I might also mention incidently, that the same doctrine prevails in England, that the King can cede territory. In fact, it is the prerogative of the King to do so. Shri Kamath: An un-written one perhaps. Dr. Ambedkar: Whatever it is, the doctrine is there. Shri Kamath: England’s Constitution is un-written, that is the difficulty.

745PARLIAMENTARY DEBATES Dr. Ambedkar: That does not matter at all. I know my hon. friends are relying upon Article 3 of the Constitution. 12 NOON Shri Kamath: Articles 2 and 3. Dr. Ambedkar: I am not touching them at all. Shri Kamath : Evading them ? Dr. Ambedkar: I go on a different plane because I am prepared to say that these Articles have no reference to the cession of territory. They do not prohibit, but they have nothing to do with cession. I am prepared to say that in view of the fact that I was concerned with the making of the Constitution, and most Members probably do not know what the intention... Shri Kamath: All of us were so concerned. Dr. Ambedkar: They do not probably know what the underlying intention of this Article was. I know it better and I am prepared to say that though it does not prohibit cession, as pointed out by my friend Shri Santhanam, its primary intention was for dealing with the linguistic distribution of the Provinces. That is why I do not refer to the Article of the Constitution, because the Government’s case might be considered to be very weak if I relied on Article 3. So I am relying on something much more fundamental and which no Member can deny namely, the power to make under Article 3...... Shri Kamath : The acquisition of new territories is under Article 2 which does not mention cession. Dr. Ambedkar: But that does not matter now. The rule that if one thing is expressed and the others are not expressed, then they are excluded, does not apply universally. I was trying to point that this position, namely, that the State is entitled to cede territory is also the law in England. It is a matter of prerogative for the king to do so and he can do so.

746 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Now I would turn to the second part of the question, namely, whether Parliament need be consulted in a matter of this sort. As you know, in England, the position has varied from time to time. At one time the view that was taken was this, that was a matter which related to the prerogative of the king. And prerogative means what ? Let me define it briefly. Prerogative means the power of the king to do something for which Parliamentary sanction is not necessary. This is the gist of what is called the prerogative right of the king. Therefore the old view was that since cession of territory was the result of the prerogative of the king, it was not necessary to bring the matter before Parliament because the king was supreme, unless Parliament, by specific law took away the prerogative of the king to make treaty and to cede territory. And as Parliament has not done that, the king has got the power. All the same, treaties ceding territory have come before Parliament in England and I will briefly explain the reason why they have come before Parliament. In the first place, the Government in England has felt that it is much better to obtain the sacntion of Parliament to the cession of territory because it was deducting so much territory belonging to sovereignty and over which Parliament exercised supremacy. Therefore, nothing ought to be done without the consent of Parliament. The second reason why it became necessary for the British Government to bring treaties of cession before Parliament was this. It was felt that the transfer of territority was after all, a transfer of the nationality of the people residing in that particular territory. The reason is that when you transfer territory, by virtue of that transfer you also practically transfer the nationality of the people. They became citizens of another State. It was felt that this was too much and it was necessary to consult Parliament whether such a step should be taken, because it was possible that Parliament may insist that the cession should not be in absolute terms but subject to certain conditions. For instance, Parliament may say that although the territory may be transferred, the nationality of the people should not be transferred by virtue of the transfer and that the people may be permitted to maintain their old nationality