HC Deb 05 April 1935 vol 300 cc749-51

2.46 p.m.

Mr. WISE

I beg to move, in page 135, line 35, after "civil," to insert "and criminal".

The Indian legal system is rather complicated and I am not quite as clear as I ought to be as to the respective positions of the various courts in India, but I am informed that in Bengal there are subordinate criminal posts which deal exclusively with criminal matters as against civil. It seems an extraordinary situation, and it is important therefore, more particularly in the case of criminal than civil magistrates, that their qualifications should be of the highest possible order, and that they should be subject to the same careful selection as their colleagues who deal only with civil cases. I hope the Government will be able to accept the Amendment.

2.47 p.m.

The SOLICITOR-GENERAL

This is not so small a matter as the hon. Member has seemed to suggest by his speech. It is a matter of some importance and complexity. It would be quite impossible and inappropriate to introduce the word "criminal" into this clause. It first of all provides that there shall be certain rules drawn up as to the qualifications for subordinate civil magistrates, then proceeds to provide that the service commission shall make a list of suitable candidates, and then that the High Court, and this is the most important part of the clause, shall deal with their posting and promotion. The High Court would be quite the wrong body to deal with the posting and promotion of subordinate magistrates. They know nothing about them, but whereas appeals from the subordinate civil judiciary go to the High Court, apeals from subordinate magistrates do not in the ordinary course. Further, there is in India a combination between the executive and criminal judiciary functions, especially in the lower grades. There, when you are considering the appointment of subordinate magistrates, or subordinate criminal magistrates, you have to consider a man's executive qualifications as well as his judicial qualifications. Here, dealing with civil magistrates, the question of executive qualifications do not arise. The main purpose of the clause in giving the High Court, the duty of dealing with posting and promotions is to give it to the High Court whose knowledge is necessarily confined to a knowledge of the judicial capacity of the candidate. For these reasons I have to resist the Amendment. The machinery of the clause would be quite inappropriate and indeed inefficient for dealing with subordinate magistrates.

Amendment negatived.

Motion made, and Question proposed, "That the Clause stand part of the Bill."

2.52 p.m.

Duchess of ATHOLL

I should like to draw the attention of the Committee to the fact that the powers which the clause gives, of making rules which limit the High Court in their appointments, might operate to prevent the best persons being appointed to the judiciary. There are already some rules in existence in one Province which determine how the appointments by the High Court are to represent the various religous com- munities. In the Punjab there are rules, made long ago, which provide that out of every eleven judges appointed by the High Court to the subordinate judiciary four must be Hindus, four must be Moslems, two Sikhs, and one must be a Christian, and that not less than 50 per cent. of the 10 non-Christians must belong to what are known as the agricultural tribes, that is persons who may own and cultivate land. These rules have been pressed on the Punjab Government by the strength of communal feeling, and it has been said to me by ex-judges of the Punjab High Court that as a result of having to abide by these regulations the judges of the High Court have often to go far down the list of the successful candidates in an examination before they can find a person who has the desired qualifications as to community or tribe.

Two of these ex-judges of the Punjab, nearly two years ago, told me that as a result they have had to make their appointments largely without taking into account personal character or professional efficiency. Therefore, it seems a much more serious matter than might appear on the surface. Not long after my conversation with these ex-judges a member of the Punjab Government, who was replying to a suggestion that the judges of the High Court had not observed these regulations, said that so scrupulously had they been observing them that in order to find a Christian to promote to the bench in his turn they had had to go down to the 90th place on the list of candidates. That will give some idea of how very hampering these rules may be to judges of the High Court in selecting the persons best qualified mentally and personally, and in regard to professional efficiency. I have felt it my duty to call the attention of the Committee to the type of rules already in existence which are likely to increase under the new conditions in India.

Question "That the Clause stand part of the Bill," put, and agreed to.