CLAUSE 99.—(Extent of Federal and Provincial laws.) (Hansard, 27 March 1935)

§ The ATTORNEY-GENERAL (Sir Thomas Inskip)
I beg to move, in page 60, line 18, to leave out from the first "the" to the end of the Clause, and to add: generality of the powers conferred by the preceding Sub-section, no Federal law shall, on the ground that it would have extra territorial operation, be deemed to be invalid in so far as it applies—

(a) to British subjects and servants of the Crown in any part of India; or

(b) to British subjects who are domiciled in any part of India wherever they may be; or

(c) to, or to persons on, ships or aircraft registered in British India or any Federated State wherever they may be; or

(d) in the case of a law with respect to a matter accepted in the Instrument of Accession of a Federated State as a matter with respect to which the Federal Legislature may make laws for that State, to subjects of that State wherever they may be; or

(e) in the case of a law for the regulation or dicipline of any naval, military, or air force raised in British India, to members of, and persons attached to, employed with or following, that force, wherever they may be."
1924 Sub-section (2) of Clause 99 deals with the question of the operation of Federal laws, and the Clause as it is at present drafted provides for this by saying that a Federal law shall extend to certain named matters. It has been thought that the law would be clearer if it were put in the opposite way, making the Clause provide, as the Amendment on the Paper suggests, that no Federal law shall, on the ground that it would have extra-territorial operation, be deemed to be invalid so far as it applies to certain named matters. The alteration, therefore, which the Amendment involves is purely drafting, subject to two matters. The Committee will observe that, in the Bill as it stands, the expression is used in Sub-section (2, b): Indian subjects of His Majesty. That is an inconvenient expression for more than one reason, but chiefly because it is not at all clear or definite as to the persons who come within the description. It is therefore proposed in the Amendment to use the expression: British subjects who are domiciled in any part of India. This will result in a slight extension of the expression, because British subjects domiciled in India may include persons of pure European blood, whereas the other expression would possibly include only persons who were not of pure European descent.
The other matter of substance is that the Sub-section, in the new form in which it stands on the Order Paper, will deal with persons on ships or aircraft registered in British India or any Federated State. It has been pointed out that it is necessary to allow a Federal law to deal with these matters in order that the international obligations in respect of ships and aircraft may be applied, and I think the Committee will probably agree that that is a proper addition to make to the Sub-section. Subject to these two points, the new form on the Paper is a drafting proposal, and I ask the Committee to accept it.

§ Mr. ANNESLEY SOMERVILLE
It is a little difficult to realise what this Amendment means as regard the Princes—

§ The ATTORNEY-GENERAL
I can assure my hon. Friend that this Amendment has nothing at all to do with the 1925 Princes, and does not in any way affect any questions that may have arisen with regard to the States.

§ Mr. A. SOMERVILLE
With regard to this Clause the Committee of States' Ministers have raised very strong objections. We find, on page 9 of the White Paper issued by the Secretary of State, that they say: In regard to this Clause, the Committee feel that it is essential to secure that a State will not be bound to enforce Federal laws on matters outside the Instrument of Accession. These are important words. It is rather difficult for a layman to follow the complex legal matters involved, but it is clear that the Princes are extremely jealous of the power of the Federal Legislature to legislate for their States, and they lay down definitely that the Federal Legislature shall have no such power of legislation outside the subjects contained in the Instrument of Accession; and, at the end of the paragraph in the White Paper regarding Clause 99, the Committee say: Clause 99 (2), as at present drafted, in so far as it is not superfluous, is unacceptable. Later, on page 18, they say: The Indian States will retain intact their power of concurrent legislation even on matters accepted by Rulers to be federal. That opens up the possibility of a very confusing situation. The Federal Legislature may pass a law on a subject within the Instrument of Accession, but the States will retain their power of concurrent legislation; that is to say, the Rulers of the States may pass laws that may not carry out the intention of the Federal Legislature. I understand that each Prince may have a separate instrument of accession in which will be laid down the subjects for which the Central Legislature can make laws. That opens up a very peculiar prospect. You may have an enormous number of instruments of accession each containing a separate list of subjects which the Ruler of a State will accept, and so we may have a most complicated arrangement of legislation. One can see the possibility in 1926 future of very great difficulty arising. The Federal Legislature will have power to legislate for one set of subjects in one State and another set of subjects in another State, and the result will be almost chaos. The Attorney-General assured me that the Amendment which was put down is not in any way in consequence of the discussions which, I understand, are going on between the draftsmen and the advisers of the Princes. That means, as far as one can judge, that the way the Princes may be interfered with is not met by the Amendment, and one would have thought that it would have been simpler to deal with this vital subject at once. If an agreement is to be arrived at on the fundamental objection of the Princes to interference with their sovereignty or powers of legislating for their own States outside their instruments of accession, I should have thought that here was the point at which the matter could be made perfectly clear.

§ The SECRETARY of STATE for INDIA (Sir Samuel Hoare)
I will try in a sentence or two to answer my hon. Friend. I think that he has rather misunderstood the scope of this Clause. The criticism of the Princes was not a general criticism such as he has just mentioned, but a criticism based rather upon the position of British subjects in an Indian State—a much smaller issue—and we are at present considering that point. As to the very wide question about the Instruments of Accession, I thought that I had explained clearly what would be the position under the Instruments of Accession in one of our earlier Debates. I made it clear that there would be a certain amount of variety as between one instrument of accession and another, but that we wished to get the greatest possible uniformity, and we assumed that there would be a general measure, of uniformity such as I described the other day.
My hon. Friend raised a further question about the concurrent field, and there again I think that he has somewhat misunderstood the scope of this Clause. It has always been assumed that the units, namely, the Indian States and also the Provinces of British India, would have the power of legislation in the concurrent field. Indeed, there would not be a concurrent field if it were not so. The Princes are not in this respect being 1927 treated differently from the British Indian Provinces. Obviously, the Federal units and the Federal Centre both have a locus standi in the concurrent field, and it is always contemplated that, that being so, the Princes will have the power of legislation in this field.

§ Mr. A. SOMERVILLE
Does that mean that in the concurrent field the Princes would have power in their own States to deal with concurrent subjects outside the Instrument of Accession?

§ Sir A. HOARE
Certainly, the concurrent field means that both the unit and the Centre have powers of legislation, subject to the conditions set out in the various provisions of the Bill under which, in the case of the British Indian Provinces, the Federal Act has the greater authority unless the Governor-General sanctions Provincial amending legislation.

§ Brigadier-General Sir HENRY CROFT
May I point out that in the White Paper the Princes laid down very strongly their objections to this Clause, and is it not a pity that the Committee cannot meet those points as far as they can be met as we go along; otherwise, we may have to have the Clause recommitted. I will read the words of the second part of their criticism, in which they say: If, for instance, it is intended that a Federal law applicable to British subjects should be enforced by State courts where under the Rules of Private International. Law it should not be enforced, the committee must strongly object. Clause 99 (2), as at present drafted, in so far as it is not superfluous, is unacceptable. In view of that strong criticism, would it not be advisable for the Secretary of State to meet the points as we go along; otherwise, we may have to do the work over again?

§ Sir S. HOARE
I think that we shall be able to meet a good many of these points as we go along, I do not think the question arises on this particular point, but, speaking generally, we shall meet the points as we go along.

§ Sir H. CROFT
Cannot we postpone the Clause instead of having to do it all again?

§ Sir S. HOARE
No