CLAUSE 243.—(District judges, etc.) (Hansard, 5 April 1935)

§ Mr. CAMPBELL KER
I beg to move, in page 135, line 17, after "judges," to insert" and presidency magistrates."
This is only a small amendment. The reason for it is that the presidency magistrates do not appear to be included in any other Clauses of the Bill. District magistrates will probably come under Clause 235 as holding reserved posts, and other magistrates will come under Clause 245, which deals with the subordinate criminal magistracy. But those are different classes, and have different responsibilities, and, in particular, they differ from other magistrates in that they have no executive power. They have certain powers under the criminal procedure code, but no executive powers such as other magistrates have. The presidency magistrates have to deal with a very varied population, for instance, in Bombay and Calcutta, and not only different classes of Indian from all parts of India, but with all races. The position which they occupy is very much the same as that of district judges, because they have purely judicial powers and not executive powers. My right hon. Friend has an Amendment down to Clause 245 which deals with the chief presidency magistrates. In view of that, he may find it better to include in this Clause chief presidency magistrates and leave presidency magistrates to be dealt with in Clause 245.

§ The DEPUTY-CHAIRMAN (Captain Bourne)
I think it might be convenient to the Committee if we take at the same time the discussion of the next Amendment—in page 135, line 17, after "judges," to insert "and district magistrates."

§ The SOLICITOR-GENERAL
I think I can reassure my hon. Friend. So far as the chief presidency magistrates are concerned, we agree that their position is comparable to the other judicial authorities, and my right hon. Friend is prepared to see that they are brought within the provisions of the Clause on the Report stage. We would rather not accept my hon. Friend's Amendment at 741 the moment, because it requires a little consideration, as this Clause is primarily not dealing with magistrates at all. It may be that my hon. Friend has pitched on the right place to put it in, but we want time to consider that. But, so far as the chief presidency magistrates are concerned, we will accept an amendment. We think it would go far to include the subordinate magistracy, and if my hon. Friend is satisfied to that extent, I will say no more.

Duchess of ATHOLL
I should like to say a word in regard to this matter, because, as my hon. and learned Friend will have noticed perhaps, I have a somewhat similar Amendment on the Paper which I understand is not to be called. It is an Amendment to insert "presidency small cause court judges."

§ The SOLICITOR-GENERAL
If I may intervene, I would point out that we are proposing to insert the chief judges-I think that is the right expression-of the small courts. The head officer of those courts, I think it should be.

Duchess of ATHOLL
The method of appointment of these very important people seems to us to be a satisfactory one, namely, that it is to be made by the Governor in his individual judgment after consulting the High Court; bir5 we think that the Chief Justice would be better than the Court. I wish to emphasise the importance we attach to all the appointments of any judicial kind, either on the civil or the criminal side, and even the subordinate ones being made by the Governor in his discretion or individual judgment, after consultation, if necessary, with the appropriate legal authorities.

§ Mr. KER
In view of the statement of my hon. and learned Friend, I am prepared to withdraw the Amendment, but I would suggest that all the magistrates should be included. If, however, the chief presidency magistrates are included, it will go a- long way to meet the necessities of the ease, and therefore I beg to ask leave to withdraw the Amendment.

§ Mr. KER
I beg to move, in page 135, line 21, to leave out "High Court," and to insert: 742 Chief Justice, whose opinion he shall transmit to the Governor along with his own recommendation. This, also, is a very small Amendment the moving of which may suggest the possession of an over-suspicious mind. The object is to place the procedure to be adopted beyond all doubt. As the Clause stands at present, the minister has to consult the High Court and then make his recommendation to the Governor. It might well be that the minister might report to the Governor that he wished to recommend the following gentlemen—A, B and C. He might then be asked by the Governor what the view of the High Court was, and he would be in a position to reply that he had consulted the High Court, and that was his recommendation, without transmitting to the Governor the views of the Chief Justice. The object of the Amendment is to make the intention of the Government quite clear that the minister has to consult the Chief Justice, and transmit his opinion along with his own recommendation to the Governor.

§ The SOLICITOR-GENERAL
My hon. Friend indicated that it might seem that he had an over-suspicious mind. In our view, it does not only seem so, but he has, in fact, an over-suspicious mind. We think it undesirable that these words should be introduced. We could not put in words, and it would not be right to put in words, that a minister should consult the Chief Justice and transmit his opinion to the Governor. If there were the slightest suggestion that he had not produced an opinion in writing, the Governor could always say that he wished it to be expressed in writing. Therefore we think it would be unfortunate to insert words which indicate a suspicion in this matter for which, we think, there is no real justification. For these reasons, I ask my hon. Friend not to press the Amendment.

§ Sir ROBERT HAMILTON
I did not quite understand from the hon. and learned Solicitor-General whether the intention was to consult the High Court or to adopt the suggestion of my hon. Friend to consult the Chief Justice.

§ The SOLICITOR-GENERAL
The High Court.

§ Sir R. HAMILTON
I should like to ask why it is the High Court rather than 743 the Chief Justice, on whose shoulders the real responsibility for supervising the judiciary of the district falls.

§ The SOLICITOR-GENERAL
I apologise for not dealing with that point. It was my fault. I did not follow that my hon. Friend had emphasized that part of the Amendment; otherwise, I should certainly have dealt with it. The proper body to consult, in our opinion, is the High Court. At the moment in India in these matters, by convention, it is very often one of the Indian Civil Service judges who is put primarily in charge of making recommendations and giving his opinion as to personnel. If my hon. Friend's Amendment were accepted, the Chief Justice would be the only person with locus stand I to express an opinion. The Chief Justice, being the head of the High Court, has full power to arrange the business of the High Court as he thinks proper. He can consult his colleagues, and obviously the opinion of the court would necessarily carry the concurrence of the Chief Justice. We think that it is right to use words in order to bring in the whole personnel of the court. We do not anticipate any difficulties. Members of the Court confer together in these matters, and we think that the words in the Bill are the proper words.

Duchess of ATHOLL
It did not occur to me that there was any suspicion attached to the Amendment until my hon. and learned Friend spoke.

§ The SOLICITOR-GENERAL
My hon. Friend said that he was the person who had the suspicion. He said that he thought that there was suspicion.

Duchess of ATHOLL
I apologise. I only rise to say that I discussed this Clause the other day with a friend of mine of long experience in a High Court of India who was very much of the opinion that the reference should be to the Chief Justice. I understood that that was the normal practice, and he appeared to think that it was a more convenient practice and more workable than reference to the High Court. I feel bound to put that point of view to the 744 Committee, I cannot express an opinion upon it myself.

§ Mr. WISE
I beg to move, in page 135, line 24, to leave out "is," and to insert "has been for not less than seven years."
I move this Amendment, which stands in the name of my hon. Friend the Member for South Croydon (Mr. H. Williams), and I hope that the Government will see their way to insert these words in the Bill, because they give a little added precaution and ensure that more suitable appointments are likely to be made to the very important posts of district judges, sessions judges and assistant judges and many others. As the Clause stands, it will be possible—I am not going to say that it is likely to occur—for a young man just called to the Bar to be appointed at once to such posts. We want to take some precaution against that sort of thing happening. The state of India to-day is possibly on a level with the state of this country in the 18th century when such appointments were made constantly in this country to the detriment probably of good order. In this case, I do not think that we would be unduly showing our suspicion of the new Council of State, and not necessarily be offending Indian opinion if we inserted words to say that, before a man was appointed to any of these important posts, he should at least have been a barrister for seven years. That would make it certain that he was of a reasonable mature age before he undertook these judicial functions. Appointments from the Indian Civil Service itself could be made as hitherto by the Governor or Governor-General. This only applies to men who are not qualified by being already in His Majesty's Service, and I hope that the Government will see their way to accept the Amendment.

§ The SOLICITOR-GENERAL
This is a very small point, but, on the whole, we would rather leave the Bill as it is. Let me follow out the suggestion behind the Amendment. It means that, if these words were not inserted, the hon. Member thinks that the Governor-General or the Governor of a Province, in his individual judgment, might 745 appoint an unsuitable man of less than seven years' standing. The only point in the limitation is to prevent unsuitable men from being appointed. Therefore, the suggestion is that if we do not hedge him about with this restriction the Governor of a Province, exercising his individual judgment, will appoint an excessively junior man. We do not think that there is the slightest possibility of making a partial appointment on that or any other grounds, and we think that it is better to leave his discretion unfettered. I entirely agree with My hon. Friend that it is unlikely, for these posts, that you will consider anybody of less than seven years' standing, but, on the other hand, you do get exceptional cases of men, who have considerable general experience and may be called to the Bar perhaps at the age of 30 or 32 after very considerable experience of other kinds in the world, who absorb the law and its mysteries very rapidly, and who may qualify with less than seven years' standing. As the Governor can exercise his individual judgment, we do not think it is necessary to edge him about, as it is unlikely that he will ever want to appoint any one with less than seven years' standing.

§ Lieut.-Colonel APPLIN
Is it not a fact that a barrister cannot be appointed to a judicial post in this country until he has been called ten years, and why should the distribution be more invidious in the case of a judge in India?

§ The SOLICITOR-GENERAL
I am afraid that I have not all the information in my bead. The fact that in the case of a High Court judge in this country it is only ten years, leads me to suppose that in the case of recorders or county court judges, probably it is a less qualification. I cannot speak as to that, because I have not all the figures in mind.

§ Mr. HERBERT WILLIAMS
I apologise to the Committee for not being in my place when the Amendment was called, but I have been meeting a deputation from constituents who have come to see me. I am grateful to my hon. Friend the Member for Smethwick (Mr. Wise) for moving the Amendment in my absence. I am afraid that the statement of the Solicitor-General does not quite satisfy me. He says that there is no need to worry because a Governor would not be so foolish as to appoint an unqualified 746 person. If that be the case, why in Clause 190 have we protected the Secretary of State, presumably on whose advice His Majesty's Government will act in appointing persons to the Federal court? In that case it is provided that the person has been for at least five years a judge of a High Court in British India or in a Federated State; or is a barrister of England or Northern Ireland of at least ten years standing, or a member of the Faculty of Advocates in Scotland of at least ten years standing; or has been for at least ten years a pleader of a High Court in British India or in a Federated State or of two or more such Courts in succession. The Secretary of State in his wisdom has inserted those checks on his own action and on the action of his successors in advising His Majesty with regard to appointments under the Royal Sign Manual, where there is less need for a check because those appointments are of such magnitude that if a bad one were made it would he a scandal. Here are appointments of less importance, and I selected a period of seven years instead of 10 years because those are not quite as exalted appointments as those mentioned in Clause 190 and therefore there ought to be some check. I shall be glad if the Solicitor-General will explain why he thinks it is unnecessary to impose any restrictions on the Governor with regard to these less important appointments when it is thought necessary to impose restrictions in respect of appointments of judges by His Majesty under the Royal Sign Manual. I should have thought that there was need for more check in regard to these appointments which are not so important than in respect of the appointments in regard to which very exalted persons are brought in in connection with the appointments to the High Court.

§ The SOLICITOR-GENERAL
If my hon. Friend will move his amendment to substitute five years instead of seven years we will accept it.

§ Mr. WILLIAMS
I shall be glad to withdraw the seven years in order to insert five years.

§ The CHAIRMAN
The proper method of dealing with the matter is for this amendment to be withdrawn and then the hon. Member can move another amendment.

§ Mr. WILLIAMS
I beg to ask leave to withdraw the amendment.

§ Sir H. CROFT
We are grateful to the Solicitor-General for taking that view on a matter which has been expressed so moderately and courteously by my hon. Friend. I would remind the Solicitor-General that in doing so he is not merely meeting fractious criticism. We desire to impress upon the Committee that in matters of this kind we are looking many years ahead. The Solicitor-General said that the inference was that the Governor would appoint an improper person. I would say that some Governors may be very inexperienced. I think the Secretary of State will not deny that we may conceivably have Indian Governors in the future and they may be men with very little experience of this kind of choice. We personally are not going to have much, if anything, to do with the matter in those days. Therefore I think it is wise, and I am very grateful for it, that the Government have accepted the spirit of the amendment, and my hon. Friend is wise to accept it.

§ Mr. H. WILLIAMS
I beg to move, in page 135, line 24, to leave out "is", and to insert, "has been for not less than five years".
May I say how grateful I am to the Solicitor-General?

§ The SOLICITOR-GENERAL
I beg to move, in page 135, line 30, to leave out "and".
This Amendment and the one that follows fill up an accidental omission. The assistant sessions judge will correspond with the sessions judge already included.

Duchess of ATHOLL
Before we pass from this Clause I feel it necessary 748 to draw attention to the importance of the provision made in Sub-section (2), to which I had put down an amendment that has not been called. The Sub-section closes one of the two avenues to the High Court at present open to members of the Indian Civil Service. It closes it not for those now in the Civil Service but I understand for those who may be appointed hereafter to that service. If I am wrong I shall be only too happy to have a statement to that effect from my hon. and learned Friend the Solicitor-General. May I put the matter in the form of a question? Sub-section (2) says: A person not already in the service of His Majesty shall only be eligible to be appointed a district judge if he is a barrister, a member of the Faculty of Advocates in Scotland, or a pleader and is recommended by the High Court for appointment. That seems to me clearly to indicate that a person not already in the service of His Majesty who is not a barrister or a pleader or a member of the Faculty of Advocates in Scotland will be ineligible in future for appointment as a judge. That is how the Sub-section has been understood I believe by members of the Service concerned. At the present time the district judge is the person who gives decisions on civil cases immediately below the High Court. The sessions judge is the person who gives decisions on criminal cases immediately below the High Court. Both those avenues to-day are open to members of the Civil Service.

§ Sir S. HOARE
The Clause makes no change in the present position.

Duchess of ATHOLL
Will my right hon. Friend make that very clear before the Report stage?

§ Sir S. HOARE
Yes, if necessary.

Duchess of ATHOLL
I believe that statement will be read with tremendous relief by members of the Civil Service, who have been extremely anxious about the matter.

§ Mr. A. SOMERVILLE
The Clause provides that the appointment of district judges shall be made by the Governor of the Province. There was an Amendment on the Order Paper to insert after "judges" the words "district magistrates." It is very important that their 749 appointment should be kept free from political influence as far as possible. May I ask the Secretary of State whether he has considered that Amendment and if so whether he will insert the words "and district magistrates" on the Report stage?

§ The SOLICITOR-GENERAL
There are two answers to my hon. Friend. District magistrates are reserved posts and their appointment and posting will be safeguarded by Clause 235. The appointments and postings will be in the hands of the Secretary of State—other than posts in connection with any functions of the Governor-General which he is required to exercise in his discretion—and it would be inconsistent to say that they should be appointed under this Clause. The other answer is that this Clause provides for consultation with the High Court. The High Court will have no particular means of information as to those who are made district magistrates. The real answer to the hon. Member is that they are already dealt with as reserved posts in an earlier clause.