HC Deb 01 April 1935 vol 300 cc139-45

I think the Amendment to this Clause in the name of the hon. and learned Member for Ashford (Mr. Spens) and that in the name of the hon. Member for Springburn (Mr. Emmott) and other hon. Members might be taken in one discussion with, if necessary, separate Divisions on each.

9.20 p.m.


I beg to move, in page 112, line 11, after "jurisdiction," to insert: in any matter in which the Federation or a person suing or being sued on behalf of the Federation is a party or. I move this Amendment in order to obtain some explanation as to what the original jurisdiction of the Federal Court is to be. On reading the Clause it would appear at first sight that the original jursidiction of the Court is to be confined to disputes between any two or more of the following parties, namely, the Federation, any of the Provinces or any of the Federated States. By Subsection (2) it should be noted the only remedy which in this original jurisdiction the Federal Court can give to a party who comes before it is a declaratory judgment. Therefore, it would appear that the Federal Court cannot entertain any suit brought before it by a subject or any suit brought before it by the Federation or an officer of the Federation against a subject. Nor can it, apparently, give any redress other than a declaratory judgment. Accordingly, it seems, no mandamus can go, no injunction can go, no prohibition can go and apparently, not even the freedom of the subject can be affirmed. If one looks at some of the other Clauses of the Bill such as Clause 174 one sees that they obviously envisage actions brought against the Federation.

Where there is a Federal Central Legislature and a number of Provincial Legislatures, disputes will obviously arise in which the subject will claim that some Measure passed by the Federal Central Legislature has gone beyond its powers and that he is hurt by that legislation or some provision in it. The subject will desire to bring an action against the Federation for the purpose of obtaining a declaration as to whether or not such legislation or a particular provision in such legislation is intra vires the Federation or not. If he finds that his property or personal liberty is infringed by such legislation, there must be some means by which he can challenge the Federation or the officer of the Federation who is enforcing that legislation. Therefore, I propose to insert the words of the Amendment which are taken from the Section of the Commonwealth of Australia Constitution Act by which original jurisdiction is given to the Federal Court in Australia in all disputes between States, or between residents of different States, or between a State and a resident of another State, or in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party and so forth.

I notice that Clause 194 of this Bill is introduced by the words "Subject to the provisions of this Act." It may be that those words do somehow or other give original jurisdiction to the Federal Court in suits in which the Federation is suing the subject or in which the subject is suing the Federation or the officer of the Federation. But as the Clause is worded at present and in view of the provisions of Sub-section (2) it seems to me that the original jurisdiction of the Federal Court is limited to disputes between the Federation and the States or the Provinces, and that it is not in a position to entertain actions brought by the subject against the Federation or the officer of the Federation. I cannot imagine that it is contemplated that a subject who feels himself wronged by legislation of the Federation or an action of its officer should have to take action in any court other than the Federal Court. I cannot imagine that if some legislation of the Federation is alleged to be ultra vires a series of actions would have to be started against the Federation in the 11 different high courts of the 11 different Provinces. Such a course would only lead to chaotic results. There will be chaos until one or other of them gets the matter settled by appeal to the Federal High Court. It seems to me that in that sort of case it must be essential that the subject can go straight, and at once, to the Federal High Court in order to get the matter put right, and to get a decision which will be binding throughout India, at the earliest possible moment.

Nothing I have said regarding this point affects what I apprehend is the position that in suits between the Federation and States, and between the States and Provinces, and so forth, the only remedy which the Federal High Court ought to give should be a declaratory judgment. I quite understand it is essential that that remedy should be confined to these subjects which are dealt with in Clause 194. But it does seem to me that in other suits between a subject and Federation the ordinary remedy of the High Court ought to be open to the Federal Court in India. From every point of view it is desirable that those who consider themselves wronged through legislation of the Federation being ultra vires, or through the action of Federal officials being ultra vires, ought to be able to go straight to the Federal High Court and have a decision given on these disputes with the least possible delay.

9.27 p.m.


In drafting this clause we have followed the recommendation of the Joint select Committee and I hope the Committee will think we have done that with very good reason my hon. and learned friend's Amendment, in effect would say that the Federal Court are to have original and I suppose exclusive jurisdiction in all cases in which the Federation is a party We have as he said passed Clauses which specifically deal with matter of suits being brought against the Provinces or the Federation. But there are many cases to-day in India—and there will continue to be such cases when this becomes law—in which private individuals have rights against and can sue the Federation. It would be most oppressive and inconvenient if any litigant who had a claim against the Federation—and it might be quite a small claim—had to go up from the far end of India to the central place where the Federal Court will sit to prosecute his claim. I assure my hon. and learned Friend that it would be regarded as the greatest possible injustice in India, and indeed I think it would have manifest and great inconveniences. It would seem quite unnecessary in what I may call ordinary cases.

But, my hon. and learned Friend says, you may get cases where there is some question as to whether legislation is or is not ultra vires. We believe that the right and best procedure in that case is the procedure under the Bill. Let it go first to the local court. Let it be sifted and dealt with there; and let it go from there to the Federal Court, which is, after all, the final court of appeal in such cases. After all, it is an advantage in these very important matters to have them sifted twice instead of once. The possible difficulties and embarrassments which my hon. and learned Friend suggests, of 11 high courts all dealing with the matter, I cannot but think will be got over by the ordinary methods of common sense. Obviously, if there is a case in any Province which raises a real question as to whether a Statute is ultra vires or not, arrangements will be made to expedite the hearing and appeal of the first case in which that issue is raised; and other litigants in other Provinces will know that this case is going to the Federal Court and the decision can be awaited.


May I ask how the litigant who is an ordinary subject can find money with which to go to the Appeal Court?


The Amendment would compel him at the outset to do what is necessarily a very expensive thing. He would have to go to Delhi, and get a special counsel to travel all those hundreds or thousands of miles, to conduct his case at all. I was not dealing with the ordinary cases which do not involve a constitutional issue. I had pointed out that in those cases it was much more convenient to everybody that they should be tried in the local court. Then, my hon. and learned Friend was putting the case of some constitutional matters which would have to go to the Federal Court—matters in which there could be no question that some litigant or other would take it to the Federal Court. I am saying that in that case again we think the procedure in the Bill is better than the procedure proposed in the Amendment. Such a case will be dealt with in the ordinary way, first by the local court; and if there is any doubt about it, and it seems a proper case for appeal, it will be taken on appeal to the Federal Court, which will have the advantage of having in this difficult matter the judgment of the first court before it. For these reasons we believe that the scheme of the Bill, under which original and exclusive jurisdiction is confined to disputes between units of the new Constitution, is better than the scheme proposed by my hon. and learned Friend.

9.33 p.m.


Arising out of the observations of the Solicitor-General, I wonder whether between now and the Report stage the Government might find it possible to consider the advisability of a compromise on this Clause. I think my hon. and learned Friend has shown quite clearly that to accept the Amendment in its present form would probably create greater hardships than the one it is attempting to alleviate, because it would mean that a great many disputes which would probably never come to the Federal Court if they were heard in the High Court first would impose a tremendous journey upon the litigant, which nobody wants to do. On the other hand, as my hon. and learned Friend has clearly shown, there is a certain number of cases of a constitutional character dealing purely with matters of law, and not with matters of fact, which ultimately would have to go to the Federal Court. I wonder whether he would consider the advisability of making it possible to have such cases tried by consent in the first instance by the Federal Court, where in the opinion of the High Court itself or of both parties such a course is desirable. I cannot help thinking that some arrangment of that kind would meet the substantial point of the Amendment, without creating the hardships which the Amendment in its present form would undoubtedly create by dragging a lot of cases to the Federal Court which would probably never get there at all otherwise.

9.36 p.m.


I am grateful for the manner in which my hon. Friend has put his suggestion, and, of course, I will consider anything that he has said. It would not be right to say that I believe that his suggestion was a practicable one—I do not think it is—but I also would like to remind him that under Clause 203 of this Bill: If at any time it appears to the Governor-General that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Federal Court upon it, he may in his discretion refer the question to that court for consideration. That is an important provision to bear in mind, and might meet some of the classes of case which my hon. Friend has in mind. With regard to his other suggestion, I do not want to delay the Committee, but I do not think it would be practicable, though, of course, I will consider what he said.


Under Clause 203 would it not require that a question of law should have arisen?

Amendment negatived.

9.38 p.m.


I beg to move, in page 112, line 14, to leave out from "dispute," to the end of line 23, and to insert:


  1. (a)the application or interpretation of this Act or any Order in Council made thereunder; or
  2. (b)the determination of any rights and obligations arising under this Act or any such Order in Council; or
  3. (c)any matter involving the interpretation of, or arising under, any agreement made between any of the parties after the commencement of this Act.
Provided that the said jurisdiction shall not extend to any such agreement—
  1. (i)if the agreement otherwise expressly provides;
  2. (ii)unless at the time of the making of such agreement an authenticated copy thereof is registered at the Federal Court."
Under the Clause any dispute between two or more of these parties, that is, the Federation, any of the Provinces, or any of the Federated States, is within the original jurisdiction of the Federal Court. if and in so far as the dispute involves a matter of legal right. I think I speak with accuracy when I say that the effect of my Amendment is to specify more particularly the extent of the original jurisdiction of the Federal Court. The words: if and in so far as the dispute involves a matter of legal right seem to me to lack precision: they might be said to cover almost any form of dispute, and they will involve endless litigation. The words which my Amendment seeks to substitute for the words in line 14 of the Clause are intended to specify par- ticularly the extent of the original jurisdiction of the Federal Court, in the circumstances contemplated by the Clause. With regard to the proviso to my Amendment, it seems to me that uncertainty might arise, in such matters as customs, conventions, working agreements, and so on, as to whether they are or are not agreements importing the jurisdiction of the Federal Court, and these matters, we say, should be put out of the reach of doubt by the obligation to register the agreement at the Federal Court.

9.42 p.m.


My hon. Friend criticised the words "a matter of legal right." We thought they were rather happy. They are certainly, we thought, better than "justiciable," which term sometimes occurs and causes grave doubt as to exactly what it means. After all, if the dispute does involve a matter of legal right, surely it is a proper dispute to take to the Federal Court, and we think they are very apt words for providing generally the category of disputes which should properly be taken to the Court. The idea behind this Clause is that if you have a dispute between two Provinces or between the Federation and a Province or a Federated State, it is desirable that that should not be litigated in the court of one of the disputing parties. If we did not have this provision, and if we accepted the Amendment, a dispute involving a matter of legal right could only be litigated in the High Court of the Province or of the State. It is largely a question of the parties involved, and for these reasons we think the arrangement in the Bill is better than that in the Amendment. With regard to agreements, we do not think there is any need for the proviso of my hon. Friend, as the Clause already covers that point.

Amendment, by leave, withdrawn.

Clause ordered to stand part of the Bill.