CLAUSE 200.—(Enforcement of decrees and orders of Federal Court.) (Hansard, 1 April 1935)

§ Viscount WOLMER
My only reason for not putting down an Amendment to reject this Clause was that I noticed that there was an Amendment already down to the Clause, and I thought, therefore, that at any rate the question, "That the Clause stand part" would be put to the Committee. If an Amendment which you have not selected does not ensure that question being put to the Committee, then, as my right hon. Friend has said, we can, as long as we know, take care by putting down an Amendment to reject the Clause.
I desire to draw the attention of the Committee to the fact that Clauses 200, 201, and 202 are all connected on a vitally important matter, and each of them raises a perfectly simple issue. I do not propose to discuss them together, because there is a separate issue raised on each; but each of them deals with the fundamental question of the relation of the States to the Federation. When I read the debate, circulated by my right hon. Friend the Member for Epping (Mr. Churchill), which the Indian Princes held on the proposals of the Government, I realised the importance of these three Clauses.
Clause 200 gives the Federal Court power to make an Order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of court in any part of the Federation, including any federated State. I want to ask the Government, in the first place, whether they have received any representation from the Princes in regard to Clause 200, because I would like to give them notice that this question becomes of more importance in the case of Clause 201, and especially Clause 202. This power seems to be in conflict with what the Princes laid down as one of the maxims which have guided the whole of their actions, namely, that their internal autonomy should be absolutely uninterfered with by 157 the Constitution Act. How can it be said that any State is preserving its internal independence and autonomy—my right hon. Friend the Member for Epping will correct me if I am wrong, but I think that the phrase used by their Highnesses was "internal independence and autonomy"— if the Federal Court can order the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of court? That enables the Court to send right into a State, to brush aside the authority of the Maharaja and the resident, and to exercise its authority as if that State were part of British India.
The point that occurs to me is that in some of these cases the Princes themselves may be involved. I have heard of cases in the past—not in recent years, but not so very long ago—where Indian Princes have been held to be beyond the jurisdiction of English Courts in England on the ground that they were independent sovereigns. Under this Clause even the Prince himself might be involved. It appears that the Federal Court might require the attendance of any person. Even the Prince himself might be summoned to attend before the Federal Court. He might be summoned as a witness, and if he declined, I take it that he would be guilty of contempt of court. I am quite certain that all these points have been thought out by the Government and certainly must have been faced by the legal advisers to the Princes, but it reads to a layman as if the status of independent sovereignty, which the Princes have hitherto enjoyed is completely destroyed by this Clause. I should also like to ask my right hon. and learned Friend whether a Prince of an Indian Federated State would still be outside the jurisdiction of an English court of law on the ground that he was an independent sovereign and within the jurisdiction of the Federal Court on the ground that he was a member of the Federation. The Committee and everybody concerned should know exactly the effect of these three Clauses. The principle is fully raised on the same narrow point in Clause 200 on the question of the production of documents and punishment for contempt of court.

§ The ATTORNEY-GENERAL (Sir Thomas Inskip)
I hope that my Noble Friend will forgive me saying that I think he has a little misapprehended the meaning intended. The Clause provides that all authorities, civil and judicial, shall act in aid of the Federal Court. In the first place, I would remind him that the Federal Court is not a British India court, but is as much a court of the Princes as of British India. My Noble Friend has rather assumed that when the Federal Court, under Sub-section (2), makes an order for the discovery or production of any document or for contempt by witnesses it is the Federal Court that will enforce the order in any State in which the order may come to be enforced. My Noble Friend is in error on that point. If he will read a little more carefully the closing lines of the Sub-section he will see that it is merely giving effect to that which is stated to have general application in Sub-section (1), and the order of the Federal Court shall be enforceable by all courts…of any Federated State as if they were orders duly made by the highest court exercising civil or criminal jurisdiction, as the case may be, in that part. The orders will be enforced by the State Court in the Princes' States. Therefore, there is no question, even of the Federal Court, which as I pointed out is the Princes' own court in a manner of speaking, enforcing its order. I do not think that any Princes could possibly object to that, and indeed it is a method which will secure the proper recognition of the sovereignty of the Princes. My Noble Friend asked the question as to whether a Prince, being recognised as a sovereign in a British court and exempt from jurisdiction, will be exempt from jurisdiction in the Federal Court? I am not sure that I really understand what my Noble Friend means by that question. Perhaps the explanation which I have given as to the closing lines of Sub-section (2) really disposes of his question. There is no issue as to the Federal Court bringing the Princes under its jurisdiction at all. It is merely a question as to an order of the Federal Court which is necessary for its administration of justice being enforced by a Prince's own court in his own State.

§ Viscount WOLMER
I am afraid that the Attorney-General has not quite cleared up my difficulty. Let me take a concrete case. Suppose a British subject or anyone resident within the Federation had an action against a Prince for more than 50,000 rupees. Such actions have occurred in England in the past and it has always been held that a suit could not lie against a Prince because he was a Sovereign Power. The British Courts, I think I am right in saying, have refused to entertain a suit on the ground that it was brought against a Sovereign Prince. My question to the Attorney-General is this: would a suit of that sort be within the competence of the Federal Court to try?

§ The ATTORNEY-GENERAL
I do not know whether it is in order to answer that question. It does not arise on this Clause or anything like it.

§ The CHAIRMAN
I think it has been pointed out previously in the Debate that this Clause deals with the securing of the attendance of any person, but there is no question arising on this Clause as to whether a Prince is or is not subject to the jurisdiction of the Federal Court.

§ Viscount WOLMER
It is a little difficult to discuss these things in a complete watertight compartment. I was led to ask the question by the reply of my right hon. and learned Friend. He said that the courts of the States would be acting as the agents of the Federal Court and that the Federal Court would be as much the Court of the Princes as it would be the Court of the Viceroy, if I may put it in that way. Therefore, it would be the normal procedure of the Court operating in the State as if it were dealt with by a purely State court. That is what I understood him to say. This difficulty was present in my mind, that the case does not arise of the higher court in a Federated State enforcing its judgment against its ruler. I do not think that sort of case has arisen but it might very possibly arise under the Federation. The question that I am putting to the Attorney-General is this—is a Prince of a Federated State subject to the directions of the Court in regard to the particulars covered by this Clause, which would certainly be incidental to the wider powers to which I alluded? Would 160 a Prince be subject personally to the directions of the Federal Court?

§ The ATTORNEY-GENERAL
The Noble Lord has travelled outside the Clause but with your permission, Sir, I will try to deal with the point he raises. This Clause deals with what I call the routine of the administration of justice. It has nothing to do with causes of action. It deals with the orders of the Federal Court with regard to securing the attendance of persons, for the discovery or production of documents the investigation or punishment of contempt of court, and matters of that sort. When the Federal Court has made its order and it comes to be enforced against any person either in British India or in a Federated State it will be enforced by the court which has jurisdiction in that part of the Federation.

§ Viscount WOLMER
Would it be within the power of the Federal Court to demand that the Rajah of a Federated State should appear in person as a witness in a case?

§ The ATTORNEY-GENERAL
I should think not. I will inquire into the matter but on the spur of the moment I should say certainly not. May I say that although a number of the Princes have called attention to some Clauses to which they entertain an Objection they have never raised any point on the proposals in this Clause.

§ Mr. CHURCHILL
I do not understand the argument of the Attorney-General, and I am surprised that on a matter of this importance he is not able to give an answer.

§ The ATTORNEY-GENERAL
The right hon. Member must not even unintentionally misrepresent me. I gave a plain answer and said that I would look further into it. But I am sure myself that the answer I gave is the right one.

§ Mr. CHURCHILL
No one can complain of the precaution of the Attorney-General.

§ The ATTORNEY-GENERAL
I am quite right.

§ Mr. CHURCHILL
I should like to know in what sense he is right. In his answer he threw an element of doubt. May I ask him specifically, is the ruler of 161 one of these federated States, some of them very small States and little more than landlords, comprehended in the term "any person"; "securing the attendance of any person"? I gather that the Attorney-General, refreshing himself by contact with those who are naturally keeping in close touch with the details of these discussions, is satisfied that a native ruler would not be liable to be called as a witness before the Federal court; that if he has been guilty of contempt of court he would not be summoned. If that be so, we should like to know.

§ Sir STAFFORD CRIPPS
Is it not the fact that there is no original jurisdiction of the Federal court which could possibly give rise to any suit being brought against a Prince in any possible way? He could never be a party to such a case. It could only arise in a case which started in his own courts, and as he is Sovereign in those courts he could only become a party if he wishes to become a party, that is, if he submitted himself to the jurisdiction of the courts. Is it not right that the powers given to the Federal courts in Sub-section (2) are only the same powers which any high court in British India will have as regards territory within its own jurisdiction, and that these powers would never include powers of summoning the Sovereigns of British India States before a court in any matter or of interfering in any way with any person who holds sovereign rights. If that limitation is put on the power of the Federal court does not that exclude the right or power to call the ruler of a Federated State before the court?

§ Mr. CHURCHILL
As there seems to be an agreement on the part of the highest legal authorities in the land on both sides of the Committee, irrespective of party divisions, I feel some temerity in asking a further question. May I put this case? Suppose there is a case being tried in the Federal Court and that one of the Rajahs, a very small Rajah, in a very remote State, makes a comment upon the case which constitutes by all the principles of jurisprudence contempt of court, there is no redress at all against the Ruler? That, I understand, is the ruling. Although these Princes are to put themselves 162 under this Federal Court which we are to set up above themselves, yet they, after they have done this act, after they have conceded a part of their sovereign rights, those sovereign rights are to remain intact and they are completely above the law, as much above the law as a sovereign in a, constitutional country. All you can do is to proceed against the Home Secretary or the Vizier or whoever is the Prime Minister of the State. Is that the position? They are inviolable in all circumstances, whether before the English court or before the Federal Court in India. If that is so I should like to have it, in terms which are quite unmistakable, and I reserve my right to make my comments on the reply I receive.

§ The ATTORNEY-GENERAL
My right hon. Friend must not expect me to encourage him to indulge in these generalities. He asked me a question as to whether Rulers are above the law. I do not propose to attempt to answer such a question because I should want to know a great deal more of what my right hon. Friend's question means when he says, "above the law." We are dealing here with a specific enactment in this Clause. I will answer to the best of my ability questions which arise from the Clause, but I do not propose, even if the Chair would allow me, to answer questions framed in such wide and loose and general terms by my right hon. Friend. So far as summoning a Prince before a Federal Court is concerned, which was the original question, I have given an answer in explicit terms. I do not think that a Ruler could be summoned to attend before one of these courts under the powers contained in this Clause. That is a specific answer that I have already given, and I propose to adhere to it.

§ Viscount WOLMER
It is very confusing. The Clause starts by saying: All authority, civil and judicial, throughout the Federation, shall act in aid of the Federal court. Then we give the hypothetical case of the Ruler of a federated State defying the Federal court, and I understand the learned Attorney-General to say that that Ruler would not be summonable in such circumstances, that his attendance could not be enforced at the court. The meaning of the Clause is very obscure. My 163 object is to find out whether the Rulers of federated States are, qua federal, in the position of subjects, if I may put it in that rather crude way, whether they are amenable to the ordinary course of the law in every respect. This Clause covers only a very small point, but it raises this test question. After having listened to my right hon. and learned Friend the Attorney-General carefully, 1 am not yet clear as to what is the position. It seems to me that in certain circumstances the Federal court could not compel the attendance of a Rajah before it, although if that individual were not a Rajah it could compel his attendance. Then I ask the learned Attorney-General how he squares that with Sub-section (1) of the Clause which says: All authority, civil and judicial, throughout the Federation, shall act in aid of the Federal court. Is an individual who violates Sub-section (1) committing an offence against the law? What is to happen to an individual who violates it?

§ The ATTORNEY-GENERAL
It is not a question of individuals violating it. It is a question of the proper authorities acting in aid of the Federal Court.

§ Mr. CHURCHILL
It is evident that the Government are in a muddle about this matter. From what Chas already emerged during our conversations this evening that is perfectly clear. They are torn between the fear of offending the Princes on the one hand, and on the other hand their own words written in this Bill. They are putting an interpretation on this Clause, which according to the plainest meaning of the English language, it does not bear. They have to declare that a ruler is not a person—

§ Sir W. DAVISON
Or an authority.

§ Mr. CHURCHILL
Or an authority, civil or judicial. At any rate I do not think we ought to take up any more time upon it. [HON. MEMBERS "Hear, hear."] I am glad I have carried the Committee with me on that point. With a view to bringing the discussion to a conclusion I ask the Attorney-General a question which he cannot say is vague or general because it is on the contrary a concrete and rigidly defined proposition, 164 namely whether he will accept an Amendment to Sub-section (2) in line 22 to insert after the words "any person" the words "not being a ruler of a native State or a Federated State."

§ Lord E. PERCY
Or the Governor of a British Province?

§ Mr. CHURCHILL
I must appeal to the Noble Lord not to bring in new topics and start new hares at this late hour. He has Icing been one of the Government's most assiduous supporters, and I am sure they will not thank him for raising these other questions at this stage, just as I am endeavouring to make a definite proposal to the Government, putting a fine direct point upon this matter, which would bring it to an end. Will the Attorney-General accept words to the effect I have suggested?

§ The ATTORNEY-GENERAL
I should have thought the answer would be "No," since we are already on the Question, "That the Clause stand part of the Bill." If my right hon. Friend put down an Amendment on the Report stage to that effect, the answer to it would be that the words are not necessary. If be reads the Clause further, he will see that this Court is to have power to make the orders which any High Court in British India would have power to make in regard to the territory over which it has jurisdiction.

§ Mr. CHURCHILL
If the Attorney-General assures us that the meaning of the Clause would not be made more clear or precise by the addition which I have suggested and that its meaning is that no ruler can be summoned, then I accept that assurance. After a great deal of difficulty which might easily have been avoided the Attorney-General has at last afforded us a full comprehension of the purpose of the Government in this Clause. I thank him for that, but he could have said straight away without any of these hesitations and consultations, these to-ings and fro-ings, that this Clause had no effect upon the princely status of the Rulers, every one of whom will be in a position, though they have subscribed to the Federation, to defy the law and flout the Federal court.