CLAUSE 2.—(Provisions as to the Province of Bihar.) (Hansard, 7 June 1912)

EARL of RONALDSHAY
When our proceedings were brought to an end the other evening, I was trying to make clear what was the effect of this Clause. Under the Act of 1909 powers were given to the Government of India to create an Executive Council for the province of Bengal. Further power was given to them to issue a proclamation for the creation of Executive Councils in other provinces, provided that the draft of such proclamation was laid before the Houses of Parliament for at least sixty days in the Session. 438 On the assumption that no address was moved by either House of Parliament protesting against such proclamation, they were then at liberty to proceed to create Executive Councils for these provinces. I understand the effect of Clause 2 of this Bill to be that the Government of India will be empowered to create an Executive Council in the province of Bihar without the formality of submitting the draft proclamation to the two Houses of Parliament.
Attention called to the fact that forty Members were not present. House counted, and forty Members being found present—

EARL of RONALDSHAY
As I was saying, Clause 2 of the Bill gives the Government of India power to create an Executive Council in Bihar and in Orissa, without laying the proclamation upon the Table of both Houses of Parliament at least sixty days before the close of the Session, according to the provision of the Act of 1909.

§ Sir J. D. REES
I only rise to put a question to the Under-Secretary for India, (Mr. Montagu), who I hope will be able to tell the Committee what is the extra cost entailed in appointing the Executive Council, because we were informed on the last occasion when this Bill was before the House that it has been already decided that an Executive Council shall be appointed in Bihar and Orissa, which must lead to considerable expense. I should also like to know whether or not the Board of Revenue is to be retained in Bihar and in Orissa. I can hardly believe so extravagant a proposition is intended, and I think some other reason has been suggested for the temporary creation of a Board of Revenue. I rather gather that the Board of Revenue is to be converted into an Executive Council, but I would ask the Under-Secretary to answer my two questions, so that the House may know what really lurks behind the Clause.

§ Mr. SANDYS
I wish to draw attention to the way in which this Clause is drafted, and which I think might possibly lead to some difficulties unless it is given a little further consideration. It is our duty on all these occasions to examine as carefully as possible the drafting of any Bill which comes before us, because, as we all know, careless drafting may lead to unnecessary and expensive litigation. That 439 being so, how much more necessary is it to have careful drafting in a Bill of this character, which deals with a large scheme of government, involving very large and important territories of India. This Clause, short though it may be, contained as it is in about five lines, and which is part of a Bill in itself extremely short considering the vast subject with which it deals, affects two important territories, and when it becomes part of an Act of Parliament it will be examined very carefully indeed not merely by those who live in the country, but, what is even more important, it will be submited to very careful examination by the educated natives of India. It has been our policy in India to educate the natives, and consequently, "when we pass a measure affecting the future welfare of the people of India, it must be a measure which will bear the most careful scrutiny and the most delicate examination. The meaning of this particular Clause, I suggest, will not emerge successfully from the examination to which it will necessarily be subjected, not only by the people of this country, but by the population of India, and especially by those whom it more immediately concerns It is more especially our duty to carefully examine the phraseology and wording of a Bill which concerns the government of a people who are not actually represented in this Chamber, and whose voice cannot be heard within the four walls of the House of Commons, in order that there may be no doubt whatever as to the interpretation of the Act, and that the Government of the country which it concerns may be carried on in an orderly and proper manner. The wording of this Clause is somewhat obscure.
Apart from its wording, there is one point which is not dealt with definitely in this Clause, but which I assume will be carried into effect by the provisions of the Indian Councils Act of 1909—that is to say, I assume that a Legislative Council will also be provided for Bihar and Orissa, as well as the Executive Council with which this Bill is concerned. I presume if the law is carried into effect it is not necessary to enumerate that point in this particular Clause, because the Legislative Council will come under the provisions of the Indian Councils Act, 1909. But I certainly think that those two great countries are entitled to every consideration, and care in the wording of enactments which 440 affect their future. After all, Bihar is an enormous place, containing 43,524 square miles and a population of over 23,000,000, for whom we are legislating in a short Clause of five lines, which, as it appears to me, is open to very considerable doubt in regard to its interpretation. The provisions of Sub-section (1), Section 3, of the Indian Councils Act, 1909, relate to the Constitution of Provincial and Executive Councils, in like manner as they are applied to the province of Bengal. I have looked at the Sub-section, and it seems to me to lay down distinct powers with reference only to the creation of the Council of the Bengal division of the Presidency of Fort William. The word used in Clause 2 of this Bill is "relate" ("relate to the Constitution of Provincial Executive Councils"). If the word had been "relates" instead of "relate"—which possibly is a printer's error—it would have been perfectly obvious, but the very fact that the word is "relate" and not "relates" makes the verb refer to the provisions of Sub-section (1) of Section 3 as a whole. Consequently it seems to me that the intelligent native, with the education which, rightly or wrongly, we have bestowed upon him, when he seeks to find exactly how the matter stands with reference to Bihar and Orissa, in connection with the provisions of the Indian Councils Act of 1909, will find himself in considerable difficulty. I think I am aware of the real reason why this Clause is being worded in this particular way. It was in order to avoid discussion in this House with regard to those subsidiary Clauses of Sub-section (1) in the Section referred to and which make provision for determining the number of qualifications of the members of the Council, and also the second Sub-section, which makes provision for the appointment of members of the Council during the absence of any members from illness or any other cause. I think we are entitled to ask the hon. Gentleman whether it was his intention to make the sentence in brackets really refer to the whole of Section 3 of the Indian Councils Act. I wish to draw attention to the extraordinarily careless way in which this Clause has been drafted. I think it is most undesirable to have these references so frequently during the course of this Bill to other Acts and to Acts in many cases dating back for more than a hundred years, and which I should have thought should have been obsolete many years ago. In this particular case I 441 should like to ask whether the subsidiary Sub-section of Sub-section (1) of Section 3 with regard to the members of the proposed council in Bihar and Orissa will be strictly adhered to, that is to say exactly the same constitution of those councils will be necessary as it was arranged for the council of the Bengal Division of the Presidency of Fort William. It would have been far simpler, I should have thought, if the hon. Gentleman's sole intention was not to avoid discussion to have made a general reference, if indeed a reference was necessary at all, and far more satisfactory to have definitely stated exactly what the intention of the Government was. If that course had been decided as being undesirable it would certainly have been far better to have referred to the powers, contained in the whole of Section 3, which deals with the power to constitute provincial Executive Councils instead of limiting the constitution of this new council exactly to the lines laid down for the creation of the council in the Bengal Division of the Presidency of Fort William. What is the reason for wording the Clause in that particular way? Here was a Clause in the India Councils Act of 1909, Clause 3, which gave definite power to constitute provincial Executive Councils, and the hon. Member must have had some reason for not availing himself of the whole powers conferred by that Clause. He desired for some reason or other to limit the powers to the powers conferred merely on the council of the Bengal Division of the Presidency of Fort William. I should like to ask the hon. Gentleman also whether, by the enumeration of this particular Sub-section, leaving out the other four important Sub-sections which are included in Section 3 of the India Councils Act, he desires to make any alteration in the arrangements which are there laid down with regard to the appointment of the members of the new council. There is a very important Sub-section in Section 3, which lays down that every member of any such council shall be appointed by the Governor-General with the approval of His Majesty. Had the hon. Member decided to avail himself of the whole of Section 3 of the India Councils Act then we should have been assured that every member of this new council should have been appointed in the same way. As the hon. Member for some reason or other definitely decided to confine himself to Sub-section (1) of that 442 Section, I should be interested to know whether the subsequent Sub-sections are to be applied or not. Unless I get a satisfactory answer on this point I shall certainly support the Noble Lord the Member for Hornsey (Earl of Ronaldshay) if he decides to move the rejection of this Clause.

§ The UNDER-SECRETARY of STATE for INDIA (Mr. Montagu)
The Noble Lord the Member for Hornsey (Earl of Ronaldshay) is quite correct in his description of what this Clause does. Having separated Bihar and Orissa from the Presidency of Bengal, I think the Noble Lord will agree that it is desirable as speedily as possible to give it that Executive Government to which it would become entitled when this Clause is passed without any subsequent arrangements in the laying of Papers for sixty days on the Table.

§ Sir J. D. REES
It comes as a matter of course.

§ Mr. MONTAGU
Nor is it necessary in this particular instance to do anything of the kind because that provision was really meant, I would suggest, to give the House the opportunity of expressing an opinion on the formation of an Executive Council in some province which the House heard of for the first time when the notification was laid, but as the House had the opportunity of discussing this Executive Council that answers the same purpose as laying Papers. With regard to the question put by the hon. Member for East Nottingham (Sir J. D. Rees) as to the cost, it is estimated that the cost of the Executive Council in Bihar will be two lakhs of rupees per year. With regard to the question as to drafting which the hon. Member (Mr. Sandys) put, the only Sub-section of Section 3 of the Act of 1909 which it is necessary to apply is the first Sub-section. The second and third relate to proclamations which it is not intended to lay on the Table of the House because this Clause will obviate that. I am advised that Sub-section (4) will only apply to the first paragraph of Sub-section (1). Therefore, there would have been no necessity for the Amendment which the hon. Member would have desired to move if he had the opportunity. I do not think there is any necessity for the exercise by the hon. Member of that care which generally, I agree with him, it is the duty of Members of this House to exercise with regard to legislation.

§ Sir J. D. REES
The hon. Gentleman did not answer my question as to the Board of Revenue. If that continues the cost will be more than the two lakhs of rupees (£13,000) for the Executive Council. I understand that the passing of this Clause does not of itself endow Bihar and Orissa with an Executive Council, but merely puts them on the footing of a province which can be endowed with one.

§ Mr. MONTAGU
Yes.

§ Sir F. BANBURY
I am obliged to the hon. Member for his explanation, which is satisfactory so far as it relates to the Sub-section requiring proclamations to be laid on the Table of both Houses of Parliament for sixty days. As this Bill is before the House it is unnecessary to lay any proclamations that may be made under it on the Table of the House. But I do not quite understand why, if Subsection (4) is to become operative, the hon. Member has not put into the Bill that the provisions of Sub-sections (1) and (4) of Section 3 of the Indian Councils Act, 1909, shall apply. How is anyone by comparing this Clause with the Act of 1909 to find out that Sub-section (4) of Section 3 applies? I hope the hon. Member will give some further explanation; otherwise it may be advisable to divide against the whole Clause. If you have legislation by reference—which is very wrong—for goodness sake have legislation by reference that the ordinary person can understand if he has the opportunity of consulting the Acts to which reference is made. It is absolutely impossible for a layman to understand this Clause, even if he has the opportunity of consulting a library. The question "that the Clause stand part of the Bill" having been put from the Chair, we cannot amend the Clause; but with the consent of the Government the Clause might be omitted, and then on the Report stage the Amendment which I think ought to be made could be effected.

§ Mr. MONTAGU
I hope to be able to satisfy the hon. Baronet. I cordially agree with everything that has been said on the subject of legislation by reference. If we were starting on this subject de novo it would be far better to do without legislation by reference altogether in this Bill. But there are enactments extending over a hundred years in which confusion has been made by repeated reference from one Act to another, and the legislation by reference in this Bill makes no appreciable 444 difference in the terrible tangle of that legislation. That is why, as I announced when introducing the Bill, the Government had decided to prepare a measure for consolidating all the Acts upon this subject, so that we may be able to avoid legislation by reference in the future. That being so we ought to avoid putting into the Clause anything that is unnecessary. I have taken the best possible legal advice, and I am assured that as soon as Sub-section (1) of Section 3 of the Act of 1909 applies to this province, it follows necessarily that other legal enactments become applicable, and chief among them is Sub-section (4) to which the hon. Baronet attaches so much importance. It is not really so important as he thinks, because, even if it did not apply, it would still be open for the Lieutenant-Governor of Bihar and Orissa to nominate these gentlemen. As regards the Board of Revenue, the provisional estimate of two lakhs is intended to cover every contemplated expenditure, and every effort will be made to keep within the estimate.

§ Sir F. BANBURY
On the whole, I am willing to let the Clause go without dividing against it. I am obliged to the hon. Member for his explanation, but I did not quite follow his argument with regard to Sub-section (4). If it does apply I think the fact ought to be stated in the Bill. There is a good deal in what he says about the confusion already existing in regard to legislation by reference, and if it is possible for the Government, with the enormous legislative programme which they have unfortunately put before the House, to bring in a Consolidation Bill to do away with this tangle, there may be something to be said for the course they have pursued. I am always willing to give credit to hon. Members opposite when they are endeavouring to do their duty; therefore I shall not divide against the Clause.