PARAMOUNTCY OF THE STATES 199
Common Law as distinguished from Statute Law while the basis of the Prerogative arising from Paramountcy lies in treaties supplemented by usage, (b) the Common Law prerogative of the Crown extends to all the subjects of the Crown resident in the King’s dominions and over aliens temporarily resident therein while Paramountcy as a prerogative extends only over the Indian States. Paramountcy is no doubt a distinct part of the prerogative of the Crown. Nonetheless, the fact remains that Paramountcy is a prerogative of the Crown.
(2) Being the prerogative of the King, the exercise of Paramountcy is subject to that part of the Municipal Law which is called the law of the Constitution
(3) According to the principle of the Constitutional Law, while the prerogative vests in the King, the King has no discretion in the exercise of his prerogative but can exercise it only in accordance with the advice given to him by his Ministers. The King cannot exercise it independently of the advice of his Ministers.
The last proposition enunciated above requires further elaboration, For, it may be asked on the advice of which Ministry is the Crown to act. The answer is on the advice of the Ministry of the Dominion concerned. Before the Statute of Westminster the British Empire constituted one single Dominion. Consequently, in the matter of the exercise of its prerogative rights, the Crown acted on the advice of the British Cabinet. After the passing of the Statute of Westminster which carved out Canada, Australia, South Africa and Ireland as separate Dominions, the Crown, in the exercise of its 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 a Dominion, the Crown will be bound to act in the exercise of its prerogative rights, i.e., Paramountcy on the advice of the Indian Cabinet.
The protagonists 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 of 1933 (they were reproduced in section 33 of the Government of India Acts, 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