Vol. 17, Part II · pages 376–380

351GOVERNMENT OF . . . . . . . . . INDEPENDENT upon an utter misunderstanding of the issue involved. After the passing of the Statute of Westminster, which earned out Canada, Australia, South Africa, and Ireland as separate dominions, the Crown, in the exercise of it prerogative rights, acts on the advice of the Cabinet of the Dominion concerned. It is bound to do so. It cannot do otherwise, it follows that when India becomes Dominion, the Crown will be bound to act in the exercise of its prerogative rights; namely Paramountcy on the advice of the Indian Cabinet. The protogonist of the theory that Paramountcy cannot be transferred to the Government of India rely on the omission from the Government of India Act, 1935, of the provisions of Section 39 of the Government of India Act, 1833 (they were reproduced in Section 33 of the Government of India Act, 1915-19) according to which the civil and military Government of India (as distinguished from the civil and military Government of British India) is vested in the Governor-General-in-Council and argue that the omission is evidence in support of the conclusion that Paramountcy could not be transferred to an India Government. Under the Constitutional Law of the Empire, it is only when a country has become a Dominion that it can claim the right to advise the Crown and the fact that before it becomes a Dominion the Crown was differently advised is no bar to its claim. The fact the Government of India was not in the past 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. Paramountcy Cannot Lapse So far as, 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. According to the Cabinet Mission, Paramountcy will lapse. This is a most astounding statement and runs contrary to another well established principle of 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

352 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Council in the Queen vs Edulji Byramji case, decided in 1840 and reported in 5 Moore’s Privy Council cases (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 by the Cabinet Mission that the Crown will not exercise Paramountcy is contrary to the Constitutional Law by which the Empire is governed. Ultimate Sanction Again, a statute passed by the Parliament of Great Britain abrogating Paramountcy would be improposed. The reason is obvious. The army is the ultimate sanction for Paramountcy. This Army has been the India Army for which British India has paid all long. Without the aid of this powerful army maintained by British India and placed at the disposal of the Crown through the agent, the Viceroy and the GovernorGeneral 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 Crown for the benefit of the people of India, and it would be a gross abuse of power on the part of the British Parliament to pass a Statute distroying that trust. Dr. Ambedkar, in conclusion, says, whatever the choice of the Indian States may be, the duty of the people of India is clear. On their behalf, the Interim Government should notify his Majesty’s Government that the British Parliament has no right to pass any law, abrogating Paramountcy and that any clause to that effect in the forthcoming legislation, conferring Dominion States on India, should be treated by the people of India as repugnant to their sovereignty and, therefore, null and void, and to declare that the Government of India will never recognise any Indian State as Sovereign Independent. 1* zz 1 : The Times of India, dated 18th June 1947 Reprinted : Khairmode, Vol. 8, Pp. 195-198. * For comments on the Statement see Appendix-IX and X.

25 BERAR WILL REVERT TO NIZAM ON AUGUST 15 Dr. Ambedkar’s Interpretation Of New India Bill The treaty by which Berar was ceded to the British would lapse and the territory revert to the Nizam on August 15, when His Majesty’s suzerainty over India would cease, said Dr. B. R. Ambedkar, referring to the replies given by Mr. V. P. Menon, Reforms Commissioner, at a press conference last week at Delhi. “The view expressed by Mr. Menon, if it is correct, “Dr. Ambedkar added,” would no doubt serve as a great solace to the people of Berar who have been anxiously waiting to know what their fate is going to be under the new dispensation. “The question is : Is the view expressed by him correct? In my judgment, having regard to the provisions contained in section 7 of clause 2 of the Bill, the view expressed by Mr. Menon is quite untenable. “Sub-section 1 (B) of section 7 says that as from the appointed date, that is, August 15, not only the suzerainty over India by His Majesty will lapse but all powers, rights, authority of jurisdiction exercisable by His Majesty in or in relation to Indian States by treaties, grants, usage, sufferance or otherwise will also lapse. What does this mean when applied to the treaty with regard to Berar ? Obviously, it means that the treaty by which Berar was ceded to the British will also lapse. Clause 2 Applies to Berar “If this construction of the clause is correct, then the effect of this sub-section is that on August 15 Berar will revert to the Nizam. To argue that this clause does not apply to Berar because Berar has not been specially mentioned is to read into the sub-section A limitation which is not there. The sub-section is so general that specific mention of Berar is unnecessary. Specific mention of Berar would be necessary only if the intention was to save it from the effect of the general clause and not otherwise. As there is no such saving clause, the sub-section as it stands must have full operation in Berar, as well as other territories belonging to Indian States and which

354 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES forms part of the British India by reason of treaty or agreement. One is, therefore, bound to say that Mr. V. P. Menon has missed the import of sub-section 1 (B) of section 7 and hereby created a wrong impression by his answers at the press conference. Transfer of Territories “It is equally incorrect to suggest as was done at the said conference by Sardar Patel that the position of Berar will stand as it is until a new agreement is made with the Nizam. The reason is that the standstill clause which is sub-clause (c) of sub-section (1) of section 7 makes a distinction between treaties and agreements which refer to transfer of territories and those which relate to arrangements regarding customs, transport, communications, posts and telegraphs or other like matters. It saves treaties of the latter class only. It does not save any agreement which relates to transfer of territory. The agreement relating to Berar is an agreement which relates to transfer of territory and as such is not saved from the general effect of sub-clause 1 (b) of section 7. “Nobody would be more happy than myself if it was shown that the construction I put upon section 7 was wrong. All I want to say is that the people of India and the people of Berar should take note of section 7 as it stands and should have the matter cleared up by a direct question to the Prime Minister, Mr. Atlee, when the Bill comes up for discussion in the House of Commons.”—A.P” 1 zz 1. : The Times of India, dated 8th July 1947.

26 IF BOUNDARY DRAWN IS NOT NATURAL IT WILL PUT THE SAFETY AND SECURITY OF THE PEOPLE OF INDIA IN GREAT JEOPARDY New Delhi, July 20, 1947. Dr. B. R. Ambedkar, in a statement today said that the partition of the Punjab and Bengal was not a local problem to be left to the people of these two provinces, but an “AllIndia problem” for it involves the fixation of the Frontiers of Pakistan and India and must be determined primarily by “considerations of facility of defence and administration.” Dr. Ambedkar said : “From the reports of controversies going on in the newspapers regarding the fixation of the boundary line betwen the West Punjab and the East Pubjab and between West Bengal and East Bengal and of the gists of the memoranda submitted to the Boundary Commission by the Muslims and Non-Muslims, it becomes clear that the results of the Boundary Commission may be disastrous to the country. “In the first place, the problem is treated as though it was local problem, to be left to the people of the Punjab and Bengal to fight among themselves. In the second place, the problem is regarded by the local people as one of land-grabbing. In this scramble for land, a frantic search is being made to find out Muslim enclaves in Non-Muslim areas and Non-Muslim enclaves in Muslim areas with a view to push the national boundaries backwards and forwards and to bring as many Muslims from Non-Muslim area to Muslim area and as many Non-Muslims from Muslim area to Non-Muslim area. “Both these methods of approach are, to my mind, wrong and misleading. The shifting of national boundaries with reference to enclaves could have been justified if it was accepted that Pakistan and Hindustan should be homogeneous states. This has, however, not been the basis of partition, as is clear from the fact that neither the Congress nor the Muslim League has stipulated for transfer of population. No matter how the national boundaries are chopped and changed, a large number of Non-Muslims will remain in Pakistan and an equally large number of Muslims will remain in