§ 8.20 p.m.
§ The ATTORNEY-GENERAL
I beg to move, in page 119, line 28, after the first "Act," to insertto the provisions of any Order in Council made under this or any other Act.It is necessary to put in these words because there may be Orders in Council either under this Act or under such an Act as the Foreign Jurisdiction Act which will affect the jurisdiction.
§ Amendment agreed to.288
§ The following Amendments stood upon the Order Paper
In Clause 213, page 119, line 37, at the end, to insert;
Provided that any provision of any Act of a Provincial Legislature which derogates from or reduces the Dowers and jurisdiction of any High Court shall be void and of no effect."—[Mr. Thorp.]
In Clause 218, page 121, line 22, at the end, to add:
(3) No law affecting the jurisdiction, powers, and authority of the High Courts shall be introduced into any legislature without the prior assent of—
§ 8.22 p.m.
§ The CHAIRMAN
Before I call upon the hon. and learned Member for Nelson and Colne (Mr. Thorp) to move his Amendment, may I mention to the Committee that the hon. Member for Clackmannan (Mr. C. Ker) has agreed to my proposal that his Amendment would be better brought up immediately after that of the hon. and learned Member for Nelson and Colne, and that the two Amendments should be discussed together? I mention this to the Committee so that they may realise that the two Amendments will be discussed as one, and a separate Division taken, if necessary, on the second Amendment. This will merely involve, in the case of the second Amendment, striking out the "(3)" and inserting the words "Provided that," so that the Amendment would read, "Provided that no law" and so on.
§ 8.23 p.m.
§ Mr. THORP
I beg to move, in page 119, line 37, at the end, to insert;Provided that any provision of any Act of a Provincial Legislature which derogates from or reduces the powers and jurisdiction of any High Court shall be void and of no effect.I do not propose to occupy the time of the Committee at any length, but, having secured immunity for the High Court, and realising that the High Court may have to stand as the protagonist of the rights of the subject, it seems advisable to see that any legislation which is passed by any provincial legislature shall not have the effect of rendering nugatory the protection given by the Bill to the judges of the High Court, in order that they may protect the person who has had recourse to them. The object of my Amendment is that not only the spirit, but also the letter, of the immunity of the High Court should be borne carefully in mind, and that no attempt should be made with any success by any provincial legislature so to alter the law as to oust-the jurisdiction of the High Court. The powers of the provincial legislatures are laid down, and they should, no doubt, adhere strictly to those powers, but they might, by ingenious draftsmanship, succeed in eliminating from the High Court any power to interfere or to protect subjects who have recourse to the High Court. In these circumstances it seems to me 290 that it would be well to place on record, in the form of words which I am proposing to insert, that a provincial legislature shall have no power whatever to pass any Act which would have the effect of derogating from or diminishing in any way the powers of the High Court
§ 8.25 p.m.
§ Mr. CAMPBELL KER
In accordance with your Ruling, Sir Dennis, I should like to say a few words about the Amendment which I have tabled to Clause 218, and which appears to come better in 'Clause 213. The Amendment is slightly wider than that which has been proposed by my hon. and learned Friend, and also is not quite as drastic. It refers to the introduction of any amendment to any legislature, whereas the Amendment of my hon. and learned Friend refers only to a provincial legislature. On the other hand, it is not quite as drastic, because it provides that amendments can be moved with the prior assent of the Secretary of State or the Governor-General. I do not attach any great importance to the wording of my Amendment because the Governor-General acting in these matters is practically the same authority as the Secretary of State, and I should be quite content, if the Government agreed, that these laws should not be introduced without the prior assent of the Governor-General. It might be held that the position of the Letters Patent is covered by the Instrument of Instructions to the Governors and the Governor-General, but it appears to me that the instrument for this purpose is rather a heavy instrument because the Governor or the Governor-General is not even to interfere unless the amendments derogate from the powers of the High Courts in such a way as to endanger their position.
The Amendment which I have put on the Order Paper would cover minor changes in the law not so serious in nature as to warrant the Governor or Governor-General in interfering. The words "jurisdiction, powers, and authority" and so on are used here, not in any wide sense, because any amendment of the law affects the jurisdiction of the courts in some way or other, but the word "jurisdiction" is used in the rather narrow sense of competence to try cases and persons, and as it is used, as I 291 understand it to be used, in the Seventh Schedule where the items provide for amendments of the jurisdiction of the High Courts. Most of this "jurisdiction, powers, and authority" is covered by the Letters Patent which were passed in 1865, and have been subject to amendment by the Governor-General in Council since 1865, but only by the Governor-General in Council and not by Provincial Legislatures. I would remind the Committee that the Governor-General in Council in 1865 was a very different authority from the Governor-General in Council being set up to-day. The new Federal Legislature is a very different thing from the Council of the Governor-General in 1865. At that time the Governor-General had from six to 12 members in his Parliament, all of whom were nominated, and besides them h, had five members of his own Executive Council, so that no law was likely to be passed in those days contrary to the wishes of the Government. The position now is entirely different.
I should like to ask the right hon. Gentleman who will reply how the position stands in the Bill with regard to Letters Patent; first of all, whether they can be amended by the Federal Legislature and whether they can be amended by the Provincial Legislature, and, if the latter be the intention, what are the reasons for introducing this innovation in the law? At the present moment the Letters Patent can only be amended by the Governor-General in Council, that is to say, by the Central Government. If it is proposed in the Bill to make these Letters Patent subject to amendment, by Provincial Legislatures, it is a new point and an innovation in the law which requires some explanation. My Amendment is not so drastic as that which has been moved by my hon. and learned Friend in that it simply provides for the previous assent of the Governor-General before any such amendment can be proposed, and the object which we both have in view, and which, I think, is secured by my Amendment, is to maintain the prestige and dignity of the High Courts in India and Keep them in the same position in the public mind as that which they have occupied since they were first introduced.
§ 8.31 p. m.
Duchess of ATHOLL
Both these Amendments deal 'with a matter of very great importance. My hon. Friend the Member for Stirling and Clackmannan (Mr. C. Ker) made a plea that his Amendment is less drastic than that moved by my hon. and learned Friend the Member for Nelson and Colne (Mr. Thorp), but, on the other hand, it is much more comprehensive and covers much more ground, because it would not allow the Federal Legislature to restrict the jurisdiction of the Provincial High Court without the previous sanction either of the Secretary of State or of the Governor-General, whereas the Amendment moved by my hon. and learned Friend the Member for Nelson and Colne would only prohibit the Provincial Legislature from restricting that jurisdiction. If hon. Members will look at the Seventh Schedule they will see that this so-called drastic Amendment of my hon. and learned Friend will still enable the Federal Legislature to exercise restriction with regard to every matter in the federal list and in the concurrent list, so that that leaves a very wide field out of account. However, both Amendments deal with something of very great importance, and that is the power that the Bill would give to a Provincial Legislature to restrict High Court jurisdiction.
It has been pointed out to me by someone who has been a judge in a High Court that one of the first matters on the list that could be removed by a Provincial Legislature from the jurisdiction of the High Court is everything that has to do with public order and the police—indeed everything that comes into the first item in the provincial list. That means, as this ex-judge pointed out to me, that a Provincial Legislature could remove from the jurisdiction of the High Court all proceedings arising out of any form of public disorder; Civil disobedience, the red shirt movement, communal riots and everything of that kind might be removed from the jurisdiction of the High Court. Therefore, both these Amendments seem to be of extreme importance; otherwise, I should not have ventured to trouble the Committee with another speech, because I am aware that I have already trespassed on its time this afternoon.
It has also been said to me that attempts have already been made in some Provinces to restrict the jurisdiction of 293 the High Court. An instance was given to me where the Provincial Legislature had been trying to create a city court in a presidency town in order to take away from the High Court the jurisdiction in regard to matters in the city. We have to remember the large number of men there are in India with legal training who are looking for work. There is, therefore, a temptation to many people to work for the creation of new courts and possibly, therefore, to limit the jurisdiction of existing courts. Another very important subject that may be removed from the jurisdiction of the High Court by the Provincial Legislature is anything to do with water disputes and water rights. An ex-judge of the High Court told me that nothing causes more frequent murders than disputes about water rights. Yet it may be within the power of the Provincial Legislature to remove these subjects from the jurisdiction of the High Court. These are points of great importance to the welfare of the people of India and for the general preservation of order which are raised by the Amendments, and I would ask the Government very carefully to consider whether they cannot accept one or other of them.
§ 8.36 p.m.
§ The ATTORNEY-GENERAL
The two Amendments raise the same sort of point but in different forms, and I am sorry to say that I cannot admit that either of them are Amendments that can be properly made within the scheme of the Bill. The scheme provides that the Provincial Legislatures shall have competence to legislate in respect of the jurisdiction of the High Court on any matters in connection with which they may pass legislation. It will be seen at once how important it is that if the Provincial Legislature is to have power to legislate upon any particular matter it shall also have the power to legislate in respect of the necessary jurisdiction of the High Court as being connected with that matter. My Noble Friend has suggested some ways in which legislation might be passed by the Provincial Legislature derogating from the jurisdiction of the High Court. I am informed that, judging from present day and past experience, the tendency has been and would be in the future in exactly the opposite direction. The inclinations of the Legislatures have been to increase the 294 jurisdiction of the High Court and not to diminish it or derogate from it.
The reason that I would mention as the one which makes it impossible to accept the Amendment of my hon. and learned Friend the Member for Nelson and Colne (Mr. Thorp) is that his Amendment makes it impossible for the Provincial Legislature to derogate from the jurisdiction of the High Court. That would really mean that the Federal Legislature would have to come in and legislate in respect of jurisdiction to deal with that which had been made the subject of legislation in the Provincial Legislature, and you would get an inextricable tangle between the two, or you might easily get such a tangle. The Amendment moved by my hon. Friend the Member for Stirling and Clackmannan (Mr. C. Ker) is not so obviously open to the same objection, but the same objection does really apply when one considers it. His proposal in Clause 218 is that no law shall be introduced with respect to the jurisdiction of the High Courts without the prior assent in the case of alterations affecting the Letters Patent, of the Secrtary of State, or in the case of other matters, of the Governor-General. The logical conclusion is that if these assents were withheld in any particular case legislation by the. Provincial Legislature would be impossible. Then we should get the same position as that which would be reached if the Amendment of my hon. Friend the. Member for Nelson and Colne was adopted.
The Government regard that as impracticable, but I hope it will be some satisfaction to my hon. Friends to appreciate that the matter has not been overlooked. In spite of what I have said as to the probable tendencies being in the direction of increasing the jurisdiction of the High Court, rather than diminishing it, provision has been made in the Instrument of Instruction by which any legislation derogating from the powers of the High Court so as to endanger the position which that Court is by such Act designed to fill, is to be sent by the Governor for the consideration of the Governor-General. That would give the most ample safeguards against the possibilities suggested by my noble Friend who last spoke. I hope that my hon. Friends will feel that the safeguard which will be inserted in the Instrument of Instruction will prevent them from feel 295 ing any fears as to the jurisdiction of the High Court being tampered with by the Provincial Legislatures.
§ Amendment, by leave, withdrawn.
§ The CHAIRMAN
I take it that the hon. Member for Stirling and Clackmannan (Mr. C. Ker) does not wish to move his Amendment?
§ Clause, as amended, ordered to stand part of the Bill.