GOVERNMENT OF . . . . . . . . . INDEPENDENT 351
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