§ (1) No Bill or amendment to abolish or restrict the protection afforded to certain servants of the Crown in India by section one hundred and ninety-seven of the Indian Code of Criminal Procedure or by sections eighty to eighty-two of the Indian Code of Civil Procedure shall be introduced or moved in either Chamber of the Federal Legislature without the previous sanction of the Governor-General in his discretion or in a Chamber of a Provincial Legislature without the previous sanction of the Governor in his discretion.
§ (2) The powers conferred upon a Local Government by the said section one hundred and ninety-seven with respect to the sanctioning of prosecutions and the determination of the court before which, the person by whom and the manner in which a public servant is to be tried, shall be exercisable only—
- (a) in the case of a person employed in connection with the affairs of the Federation by the Governor-General exercising his individual judgment; and
- (b) in the case of a person employed in connection with the affairs of a Province by the Governor of that Province exercising his individual judgment:
§ Provided that nothing in this sub-section shall be construed as restricting the power of the Federal or a Provincial Legislature to amend the said section by a Bill or amendment introduced or moved with such previous sanction as is mentioned in subsection (1) of this section.
§ (3) Where a civil suit is instituted against a public officer, within the meaning of that expression as used in the Indian Code of Civil Procedure, in respect of any Act purporting to be done by him in his official capacity, the whole or any part of the costs incurred by him and of any damages or costs ordered to be paid by him shall, if the Governor-General exercising his individual judgment so directs in the case of a person employed in connection with the affairs of the Federation, or if the Governor exercising his individual judgment so directs in the case of a person employed in connection with the affairs of a Province, be defrayed out of and charged on the revenues of the Federation or of the Province, as the case may be.—[The Solicitor-General.]
§ Brought up, and read the First time.
§ 3.50 p.m.
§ The SOLICITOR-GENERAL (Sir Donald Somervell)I beg to move, 46
That the Clause be read a Second time.This Clause is in fulfilment of an undertaking which was given on an Amendment to Clause 259 moved by my hon. and gallant Friend the Member for Wycombe (Sir A. Knox). The Clause deals with the position of judges, magistrates or officials against whom criminal or civil proceedings may be initiated. We think it right, as I stated in that Debate, that there should be certain provisions, to some extent carrying on the existing provisions of the law, and to some extent supplementing them, to meet the new position inserted in the Bill. The matter was dealt with at some length in the earlier Debate, and I certainly do not want to weary the Committee by going into the matter in detail at the present time. I think I can explain with what I hope will be reasonable brevity what the Clause does.The first Sub-section, it will be seen, provides that Bills which either abolish or restrict certain sections of the code of the criminal and civil procedure shall not be introduced without the previous sanction of the Governor-General or of the Governor acting in his respective discretion. The section of the code of criminal procedure says that no prosecutions against a judge or magistrate or official of a certain standing shall be initiated without the leave of the local Government. It also gives the local government powers to direct what court shall hear a prosecution as well as other matters with regard to procedure. That course is reserved in this sense. No Bill altering it can be introduced except with the sanction of the Governor-General or the Governor. A criminal prosecution is obviously a very serious thing for a judge, or a magistrate in particular, or indeed for any public servant, and we think that the existing safeguards, about which no complaint has been made, should be preserved.
Sub-section (2) of the Clause provides that in exercising the power under that Clause, that is to say, in deciding whether or not a prosecution shall go forward, the Governor-General or Governor has the last word, or the final decision will be by the Governor-General or the Governor in his individual judgment. We do not anticipate that on these matters there will be a difference between him and his ministers, but it 47 is thought right, the matter being of such great gravity to the civil servants themselves, and in particular to Indian members of the Civil Service, that, in the last resort, the Governor-General or the Governor, if he feels that it is a case where a prosecution should not go forward, shall be able to make that decision effective. The existing statutes with regard to civil procedure are somewhat detailed. The most important of them is one which says that, in the event of civil proceedings, the official shall have two months' notice in writing before the actual legal machine starts to operate. That also we preserve in this Clause. But so far as civil proceedings are concerned, the really important thing to an official is whether, in all proper cases, his Government will stand behind him in respect of costs, and, in proper cases, of damages which he may have to pay.
As I explained in the earlier debate, a servant of the Crown is in a different position from that of the servant, say, of a corporation or a company. If a servant of a big corporation or company, by an act of negligence, causes damage in the course of his duties, the person who suffers damage sues the master, the employer, the big corporation, because they will have the money with which to pay if he succeeds in his action, whereas, owing to the rule that the Crown, or the Government representing the Crown, cannot be sued in the case of civil wrongs, the proceedings have to be taken against the employé, the servant, and not against the master. Therefore, it is right, that being so, that the Crown as master should stand behind the servant in all proper cases. We accordingly provide, in Subsection (3) of the Clause, that so far as any costs or damages may be awarded against a public official, the question as to whether they should be defrayed out of the public purse, is a matter which, in the last resort, will rest with the Governor-General or the Governor. Here again we do not anticipate differences. We believe that Indian Ministers will be as anxious to stand behind their officials, in all proper cases, as would the Governor-General or the Governor, but we provide that, in the last resort, the Governor-General or the Governor shall decide. There might be cases in which an official acting technically in the discharge of his duty was guilty, perhaps 48 wilfully of misconduct, and it would be wrong for costs or damages to be defrayed out of the public purse. Such cases no doubt have occurred in the past and may occur in the future, but in ordinary cases, it is right that the employer should stand behind the servant. That really explains the Clause, and I hope that I am not unduly optimistic when I say that I think that the intention carried out in the Clause will satisfy hon. Members who raised this point.
§ Mr. MORGAN JONESMay I take it that, even if the Clause be passed, it will still be possible for the Central Parliament or the Provincial Legislature, as the case might be, to petition for the removal of a judge on any appropriate ground? I have a case here. What powers will exist for the removal of public servants other than judges who may be deemed to be or proved to be unfit for their positions.
§ The SOLICITOR-GENERALI do not think that that point really arises on this Clause at all. So far as High Court judges are concerned, the hon. Gentleman will remember the provisions which we have passed as to their rights, and, so far as other officials are concerned, the general principle is that no one can be removed by any authority lower than the authority appointing him. There is a hierarchy who can appoint and who also have the right to remove, but I do not think that it really arises on this Clause. I quite follow that an act by an official which might form the proper basis of a prosecution might also form the proper basis for his removal if, in point of fact, the prosecution were successful, but the question of his removal would not arise under this Clause. The Clause merely deals with the question as to the condition which has to be fulfilled before prosecutions can be started against officials. It does not in any way impede or stop representations being made with regard to officials, or, subject to the safeguards, with regard to judges. It does not in any way stop representations being made in any quarter as to the conduct of officials. It really has nothing to do with it. It simply deals with the question whether criminal proceedings shall be initiated, and it also deals with the question of costs and damages.
§ 4.2 p.m.
§ Mr. HERBERT WILLIAMSI approach this proposed new Clause with some diffidence, because it raises issues outside my personal experience, but I have two doubts about the terms of this new Clause. Sub-section (1) provides that no Bill or amendment of the law with regard to the protection afforded servants of the Crown in India is to be introduced
without the previous sanction of the Governor-General in his discretion or in a Chamber of a Provincial Legislature without the previous sanction of the Governor in his discretion.Of course, "the Governor in his discretion," we know, means his decision taken entirely of his own free will, without his ministers having the right to tender advice. Nevertheless, that will not prevent ministers from bringing pressure to bear upon the Governor-General or the Governor, and I can see the possibility of a long period of propaganda being directed against the Governor-General or Governor with regard to an issue of this kind, so that ultimately a weak Governor-General or Governor—and we must from time to time anticipate the possibility of either in the future—might give in to this pressure and consent to a Bill being introduced. Having regard to all the declarations that have been made in this country about the protection to be afforded to civil servants in India, and having regard to the obvious grave fears of the civil servants in India, it seems to me that no legislation affecting this protection ought to be introduced except in a Bill of this Parliament. In other words, this seems to be a matter in respect of which we should not let go control, but should retain it in our own hands. After all, this is a great experiment. It may be right or wrong. I am frankly very dubious about it. This Bill represents an enormous advance, as it is sometimes called, but you can advance both to heaven and the other place, and I never refer to these Bills as reforms or advances, but as proposals. They may be good or bad, but, in any event, in respect of those things where real fears exist—fears not only among civil servants of our own colour, but equally among civil servants who are native-born Indians—this seems to me one of the things which we might retain in our own control.Then in Sub-section (3) provision is made that where a civil suit is instituted of the kind contemplated against a 50 public officer in respect of any act said to be done by him in his official capacity, the expenses are to be provided out of public funds. Again, I speak without great experience. I have been fortunate enough up to now not to be engaged in any proceedings in our courts except proceedings against me because I did not drive my motor car fast enough, but, apart from that, I have not had experience of the courts. I am aware, however, that, even in this expeditious country, legal proceedings sometimes are rather long, and I think in India there is a capacity for dragging them out beyond anything we can understand. Those who have read about the case of Jarndyce and Jarndyce, which is said to have taken place in Westminster Hall and the buildings adjoining, now pulled down, may have some idea of conditions in this country, and I understand that even to-day legal proceedings are, in fact, drawn out a very long time. I have particulars of one or two cases given to me. In one case proceedings commenced in 1907, and were finally terminated by the Judicial Committee of the Privy Council in Whitehall five years afterwards. During the whole of that period the civil servant concerned was undergoing very considerable anxiety.
I am wondering whether it is contemplated that if these cases are numerous—and I am rather inclined to think that they will be rather more numerous with the change of the general control—the civil servant will be helped financially as the case goes on, and not merely receive subsequent reimbursement. I am given to understand that legal proceedings are rather expensive, and, after all, the Indian civil servant, so far as pay is concerned, is not a Croesus. He is reasonably well paid, but he may not have capital resources, and may be out of pocket for a substantial period. Therefore it ought to be made quite clear that it is not mere reimbursement that is involved, and that the authorities will, in fact, take charge of the defence and meet the expenses as they are incurred. I am a little doubtful whether Subsection (3) provides for that. I have every reason to believe that that is what is intended, but I want to make sure what is going to be done, because if we are to have proceedings, which, in all probability, would be backed by some 51 wealthy propagandist organisation directed against an Indian civil servant, who might be, for the time being, many hundreds of pounds out of pocket before being reimbursed, I think that that ought to be avoided. I think he ought to know, as he is called upon to provide money to finance his part of the proceedings, that that money will be immediately forthcoming from official sources; otherwise the position of some of these men will be one of intolerable difficulty. It is bad enough when wealthy people may be concerned in proceedings where somebody else is ultimately going to pay, but where we are dealing with comparatively young men who cannot, except those lucky ones who have inherited money, be in possession of much financial resources, I think it ought to be made sun clear that they are to be effectively helped as proceedings go on.
I opened by saying that I spoke with rather more diffidence on this subject than I do on most subjects, and on most subjects I do not speak with much diffidence, for the obvious reason that there is no reason to speak with diffidence on subjects you know something about; but when speaking on a subject in which I do not profess to be expert, and I call attention to certain obvious weaknesses in the matter, I am entitled to use these protective words in case I have said something which is open to very effective retort from the Front Bench.
§ 4.9 p.m.
§ Mr. SPENSI have in my name an Amendment on the Order Paper dealing with the provisions of Sub-section (3) as regards civil suits. Although I might be expected to know more about this subject than my hon. Friend who has just spoken, I confess I also speak with some diffidence, because in reading the proposed new Clause it does seem to me that, on the face of it, the assistance given to the official is the right to be indemnified against costs and damages after the action has been taken against him. It is just that possibility of being put to immediate expense, and the anxiety which is involved in any suit, no matter how frivolous or ill-founded, that is causing a great deal of anxiety among the officials.
§ The CHAIRMANI am not sure whether the hon. and learned Member 52 realises that he cannot move an Amendment at this stage of the proceedings. The Question before the Committee is, "That the Clause be read a Second time." If the hon. and learned Member desires to move his Amendment, he must do it after the Clause has been read a Second time. There is no objection, of course, to his speaking on the Clause now, and afterwards moving his Amendment, if he wishes to do so. If he wishes to discuss the Clause as a whole, it might, of course, be quite convenient to him and the Committee that he should deal with the particular point raised by the Amendment.
§ Mr. SPENSI am much obliged. Perhaps I may say what I have to say now, and later move my Amendment formally. My point is that, apparently, the protection given is the right to be indemnified against costs and damages after a suit has been instituted, and the anxiety that is genuinely felt by a great number of officials is, of course, that they may have suits brought against them on purely frivolous and vexatious grounds, and may be put to a great deal of immediate expense, and certainly put to a great deal of personal anxiety and inconvenience. There is a very strong feeling in certain districts—I do not put it higher than that—where they think there is a likelihood of vexatious and frivolous suits being used as a method of harassing them, and I do venture to suggest to the Government that it is desirable to strengthen the provisions of the Clause as regards civil suits. My Amendment, which is taken from our Administration of Justice Act and the old Frivolous and Vexatious Causes Act, provides that before any action should be brought against an official in respect of any act or omission purporting to be done or made by him in his official capacity, the leave of the High Court should be obtained before the suit is actually commenced. I think that additional protection would go a very long way to satisfy the anxiety of these officials. If, in fact, their fears are ill-founded, then this sort of vexatious case will not be started. If their fears are right, then they will be started, and I do suggest that the protection is necessary for their benefit, and to prevent any sort of vexatious action on the part of political or other opponents 53 in certain parts of India. Therefore, while I feel sure that, so far as the criminal prosecution is concerned, the proposals in the new Clause appear amply satisfactory, there is, in my submission, grave doubts as to whether the present provisions as regards the civil suit are really sufficient to meet the very real anxieties which these large classes of officials in certain parts of India do, in fact, feel. I hope that the Government will consider seriously strengthening the Clause so as to meet those anxieties.
§ 4.14 p.m.
§ Mr. THORPI want the Committee to look at this question and this Clause from a different angle. As I understand it, both of the speakers so far have looked upon this as a Clause to protect the civil servant, but if you afford the civil servant protection, you sometimes have to do it at the expense of the general public. I want the Committee to assume, not that there is a frivolous or vexatious action against a civil servant in respect of some act or omission of his in his official capacity, but to assume that there is a legitimate and bona fide cause of action against the civil servant. In that case, I suppose, the whole Committee would agree that no impediment should be put at all in the way of the person taking his cause of complaint to the law courts, and having it decided one way or the other. I do not think the Committee should look at this Clause entirely from the point of view of preventing frivolous and vexatious actions, but, if passed in its present form, the Clause is going to have the result that any person who has a legitimate cause of complaint against a civil servant can only take proceedings in the law courts with the consent of the Governor-General in the one case—
§ The SOLICITOR-GENERALNot in the case of civil suits. That is only in the case of criminal prosecutions.
§ Mr. THORPA person might have a legitimate cause to institute a criminal prosecution against an official who had done something in the course of his official duties which was a criminal act, and if the prevailing authority that had jurisdiction over him chose to protect him, then they could undoubtedly do so by withholding consent. I do not suggest that they would wilfully withhold consent 54 or withhold it unreasonably, but there might be very considerable pressure brought to bear upon them to withhold consent if the act happened to be one which suited the taste for the moment of the political forces in power. I do not think that this is a matter which ought to be lightly parted with by this House. If any person in this country does a criminal act he is liable to prosecution, and a private person can prosecute him for it. It might be that it would not suit the Government that a private person should prosecute a civil servant for an act which he did in his official capacity. From the point of view of the general public in India, this Clause is introducing a dangerous principle when it allows the Executive, perhaps under political pressure, to avoid legitimate and proper prosecution which ought to take place.
§ 4.17 p.m.
Duchess of ATHOLLI am sure that no one wishes to see a civil servant protected from any legitimate cause of prosecution, but we have to remember the very apprehensive note in the memorial of the Bengal and other civil servants, which speaks of India being the home of false cases. I recognise that the Clause which has been moved is an attempt to meet apprehensions on this score which have been expressed in the memorial, but it has been represented to me that the Clause does not fully meet the case. It falls short of what civil servants feel to be necessary. The prior sanction of the Governor-General or the Governor is to be required to any change in certain sections of the codes of civil and criminal procedure that now give them some protection, but prior sanction may be obtained for Bills which would limit the powers of the local Governments in this matter. In that case the protection would not be effective. The hon. Member for South Croydon (Mr. H. Williams) has spoken of the pressure that might be put on the Governor-General or the Governor. Everyone of us who has sat through these Debates must have had it borne in upon his or her mind that the Governor-General and the Governors will have many difficult situations to deal with and it may be made difficult for them to resist pressure on this and other matters which are creating difficulties between 55 them and Ministers. Therefore, we cannot assume that because the prior sanction of the Governor-General or the Governor is required there will never be any amendment of these sections of the codes of criminal and civil procedure.
The reference that has been made by my hon. and learned Friend served to indicate that the protection given under the codes is not very substantial. He referred to the fact that two months' notice had to be given. Another Section gives protection from arrest, but there is nothing very substantial in these Sections. It has been represented to me that it would be very much more satisfactory if the civil servants could be protected from frivolous civil suits as well as criminal prosecutions. Though prior sanction of the local government is to be required in regard to a criminal prosecution, no such sanction is required for the institution of a civil suit. Perhaps I have not made it quite clear that if there were an amendment of the criminal or civil procedure such as is referred to under Subsection (1) then the powers of the local government to insist on their previous sanction before a case of criminal prosecution takes place, might be negatived. Therefore, it is very desirable that there should be added to this Clause a provision that the sanction of the local government shall be required both for civil suits and for a criminal prosecution. If you are willing to allow me to move an Amendment to that effect, which I have handed in in manuscript form, I should be glad to do so. I am sorry that I was not able to hand in the Amendment before. Perhaps at a later stage it may be possible to move something to that effect.
I should like to add to what my hon. Friend the Member for South Croydon said in regard to the length of time that a civil suit may be hanging over an officer's head. He mentioned a suit instituted in 1907 which dragged on until it was finally quashed by the Priviy Council five years later. I have particulars of another case which lasted from 1908 to 1912. It was a suit against a district magistrate of Midnapore. It is also said that civil suits are now pending against an officer of the Indian Civil Service and an officer of the Indian Police for official acts taken in 56 connection with the civil disobedience movement more than three years ago. Of course it would be a great help if finally the expenses of such a suit could be met as proposed, but I do not think it needs any words of mine to indicate the terrible strain which a man may have been suffering during the three, four or five years that the case has been pending, with the prospects of his career being ruined and of his being dismissed the service and losing his pension if he should be found guilty.
In the first case mentioned by the hon. Member for South Croydon, a civil suit was brought against a district magistrate in Bengal for searching a house for firearms during a riot. Surely that was a very proper and sensible thing to do. However, the Calcutta High Court tried the case and decided it against the officer in question. An appeal was made to the same High Court in its Appellate jurisdiction, but the verdict was upheld and it was only after five years that finally the case was quashed by the Privy Council, with, I understand, some strong remarks about the Calcutta High Court's verdict. That shows how a case may drag on and what a terrible strain may be caused to the officer who is the subject of a suit of that kind.
I feel, therefore, that the Clause does not fully meet the position. It ought to protect an officer against a frivolous civil suit being instituted, and it, seems to me that if the prior sanction of the Governor-General or the Governor were required no responsible person would wish to quash a suit that seemed to show evidence of a prima facie case. No one would wish to put himself in the position of quashing a case which might be upheld. In view of what was said by the civil servants in their memorial as to India being the home of the false case, and the extent to which they feel that many officers, in Bengal particularly, have inevitably brought on themselves hostility because of the actions they have had to take in suppressing criminals and civil disobedience, there may be more occasions in the future than there have been in the past when they will require protection. I would remind the Committee of what the memorial said on this point:
There are few officers, European or Indian, in this Province"—57 that is, the Province of Bengal—who in their capacity as District Magistrates, Special Magistrates, or Commissioners of Tribunals have not been brought into direct conflict with Terrorism, with the result that they are compelled to remain under constant protection. We anticipate that with the introduction of the new Constitution and for many years thereafter, there will be a large and powerful element, both in the Legislature and outside, which will be hostile to the Services and vindictive towards individuals by every means in its power. Dangerous and arduous as has been the work of the two chief Services in Bengal in the past, it will be doubly so in the future.That expression of apprehension is such that it is impossible for us to ignore it. These men are doing very difficult and dangerous work. They have been chosen by the Secretary of State and by the Government of the day and we owe it to them, whether they are British officers or Indians—the Indians may be even more exposed to danger in this respect than the British—to give them all the protection we can.
§ 4.28 p.m.
§ The SOLICITOR-GENERALI should certainly not wish to discourage the diffidence of my hon. Friend the Member for South Croydon (Mr. H. Williams) even if it were within my power to dismiss in a summary way the points he raised. I should like to encourage it. The first point that he raised was whether we have taken the right line in Sub-section (1) in giving this safeguard to the existing provision of the Criminal and Civil Procedure Codes. He suggested that they might be bodily put into the Bill so that they could not be altered except by an Act of this House. I do not know whether he has read them, but I think the Committee will agree that that would be an inappropriate course. It may be desirable at some future date to increase the protection. They deal with matters of procedure of a somewhat technical and detailed kind and I do not think that they ought to be petrified, so to speak, by putting them into the Bill.
§ Mr. H. WILLIAMSThe Solicitor-General says that they might be used for the purpose of increasing protection. The words are, "to abolish or restrict the protection." Therefore, the point that he raises does not occur in connection with this Clause.
§ The SOLICITOR-GENERALIt is, of course, always possible to base an argument against anything on the assumption that the people concerned are going to give way to improper pressure. If we took that line no scheme would work. It might be assumed, for instance, that the Secretary of State would give way to improper pressure or perhaps Members of this House would give way to improper pressure any machinery that you set up in this or any other matter can be criticised on those lines. We believe, however, that the safeguard that we have put into Sub-section (1) is completely satisfactory. First of all, the Governor-General and the Governor have special responsibilities for the interests of the public services and it will be their prime duty and object to see that those services receive proper treatment. Further, though there might be reason to anticipate pressure of certain kinds, I do not think that there is any reason to anticipate pressure by Ministers on the Government to remove perfectly proper protection from the officials who will be carrying out the orders of the ministers themselves. Ministers are in charge of their various departments and the civil servants are carrying out their duties under the Ministers; therefore, it is hardly likely that ministers will act in the way suggested and try to get this protection removed. We believe that the matter is absolutely safe in the hands of the Governor-General or the Governor, that there is no real cause for the fears which have been expressed, and that Sub-section (1) is best left as it is.
The hon. Member for South Croydon raised a point of obvious importance in regard to Sub-section (3). He said that a case may go on a long time—he gave an example—with costs being incurred from month to month, which the defendant may have to pay. The hon. Member asked whether he could be reimbursed before the case closed. The answer clearly is "yes," and, if my hon. Friend will look at the proposal, he will see that there is a distinction drawn between costs incurred and damages or costs ordered to be paid. Costs ordered to be paid are the costs which the defendant may have to pay on the final decision. But "costs incurred" means that if he can say that he has had to incur costs, that his solicitors have sent in a bill and he has to pay £100 or £200, in the case that has been brought against 59 him, he can be defrayed those costs as from the date they are incurred if the Governor-General thinks it is a proper case in which to do so. The case referred to by the Noble Lady is clearly one where some point of importance was raised as to the right of search by a police officer. That is, of course, an important question, and obviously in a case of that kind the Government would stand behind their officer, and, in fact, conduct the case and pay the costs as they were incurred.
§ The SOLICITOR-GENERALYes.
Vice-Admiral TAYLORIt is a responsibility of the defendant to appeal to the Governor-General to go into the case and see whether it is one in which he shall be reimbursed his costs. The Governor-General may say that the case has not gone on long enough, that he has not sufficient evidence yet upon which to make up his mind. That might go on for a long time.
§ The SOLICITOR-GENERALBut some one has to make up his mind, and I do not think there is any reason for the assumption made by the hon. and gallant Member. This is not a new matter. It happens in this country and has been happening in India. A servant of the Government may be sued for damages because of negligent driving of his motor car; he may run some one down and a writ be issued. He puts the matter before the Governor and asks if the Government will stand behind him. In most cases they do so, but it must be within their judgment as to whether they do so or not. Assume a case in which a man in the course of his duty gets drunk and injures some one. That may well be a case in which the public should not be put to expense in assisting in the case. There must be a discretion, and we think it is properly provided for by saying that the last word shall be with the Governor-General or Governor as the case may be.
Duchess of ATHOLLMay I ask whether it will be easy for the Governor-General in the event of the case I have cited in which judgment was given against the officer by the Calcutta High Court to reimburse the expenses of the officer?
§ The SOLICITOR-GENERALI should have said quite easy. It is obvious that the case to which the Noble Lady refers raised a point of constitutional principle. The Privy Council reversed the decision of the Calcutta High Court, and it is obvious therefore that there were grounds for taking the appeal to the Privy Council. It was a doubtful case, and there were strong arguments on both sides. The officer acted bona fide in the discharge of his duty believing that he was doing something which he had power to do. I cannot see the slightest reason for the Governor-General saying that this was not a proper case in which to support the officer. The Noble Lady has given notice of an Amendment which provides that there shall be previous sanction in civil cases as well as in criminal cases. The case which she put is clearly a case where previous sanction would have had to be given. No one can say that a case in which a decision has been given by two courts of law against a defendant is a frivolous or vexatious proceeding which ought to have been struck out before it came before the court.
§ The SOLICITOR-GENERALBut no one would strike out as frivolous and vexatious a proceeding of that kind, or would say it was a frivolous proceeding when it was decided against the defendant by two courts of law. No one would say that the High Court, for example, would have decided that it was a proceeding which never should have been brought at all. That kind of case would not be covered by the suggested Amendment to the new Clause. With regard to the Amendment of the hon. and learned Member for Ashford (Mr. Spens), we feel, and I think the Committee will feel, that, as far as civil proceedings are concerned, there is an important principle on the other side to be considered and which in the interests of the officials themselves should be preserved. That is the interests of the public. Civil proceedings are generally for damages to the person or property of the indidivual who, having received injury, says that he is entitled to damages. It is wrong to suggest or to have a procedure which suggests that 61 officials are to be safeguarded from being liable to individuals for damage which they may have inflicted upon anyone. We think it would be wrong in the interests of the civil servants themselves to introduce for the first time the condition that before an ordinary private citizen in India can issue a writ for damages to which he thinks he is entitled he should have to go to the High Court or to the Executive for leave. The proposal of the hon. and learned Member would inflict great hardship on people. Most of these are small cases and will be brought in the first instance in the local court, but, according to the Amendment, every one who has any claim, however good or however small against an official, would have to go to the High Court in Calcutta and Bombay and brief counsel before he could start his proceedings. He would have to incur special expenses by going to the High Court to get leave. What would happen there? Having gone to the High Court, the High Court may say that there is a primâ facie case against the defendant, that is, presumably, after having heard some of the evidence on affidavit. That surely is a damaging atmosphere for the defendant himself, namely, that after a preliminary examination, the High Court thinks that there is a primâ facie case against him. In our opinion, it would be extremely onerous on the plaintiff and prejudicial to the defendant.
The procedure in India itself provides a safeguard to this extent, that when a case is brought in a court in India the first duty of the court is to define the issues, and, in so doing, it strikes out any which are irrelevant, frivolous or vexatious. That provides a safeguard against purely frivolous or vexatious proceedings. Although we appreciate the great importance of this matter, yet on the whole we do not think it would be in the interests of civil servants in India that we should go beyond what is provided by the new Clause. In so far as vexatious cases may be brought, they will only redound to the detriment of the pockets of those who bring them. Their frivolousness will become apparent, and the plaintiff will be mulcted in costs. It will be a very unsatisfactory way of spending money. There is a possibility, of course, of such cases being started, but we think it right not to go beyond what is proposed in the new Clause, because it would be wrong to set up a procedure which would at any 62 rate appear to hedge round civil servants against civil liability for acts which they may commit. The hon. and learned Member for Nelson (Mr. Thorp) suggested that the procedure with regard to criminal prosecutions was something which we were introducing by this Bill. That is not so. All that the Bill is doing is to adapt an existing safeguard to the new conditions which will be established.
§ 4.46 p.m.
§ Mr. ATTLEEWhile I realise that the position of India is a special one, I think we want to be very careful about what we do in this matter. There may be such cases as injustice by Government servants and Government officials to private individuals, ordinary citizens. In this country we have always been very jealous to protect the ordinary citizen. But as far as I can see the suggestion of the Noble Lady would give almost complete immunity to the official. It seemed to me that many of her remarks with regard to the length of time and so forth, were quite uncalled for. The Noble Lady might have raised the same point over and over again on the question of the innocent persons who were brought up in the Meerut trial and were kept for years in an agony of mind. We have to be very careful not to give too much immunity to public officials. They may commit offences like anyone else. The tendency always has been that when action was taken the Government naturally stood by its officers. We have had plenty of cases, even in this country, where someone has been proceeded against and it has taken years and years before it was possible to get any redress. I think we ought not to accept any extension of this Clause.
§ 4.49 p.m.
§ Brigadier-General Sir HENRY CROFTMy Noble Friend the Member for Perth and Kinross (Duchess of Atholl) was not complaining that possibly a case might be dragged out in point of time. She no doubt realises that that may happen in any country in the world, although we believe that it happens more frequently in India. Her point was that during the whole of this time a particular servant of the State would be suffering vexation and distress and would not know what his position was. I very much regret that the learned Solicitor-General could not indicate the Government's acceptance of her suggestion that it should be the 63 Governor-General or the Governor who should decide whether these cases should be proceeded with or not All of us who have been trying to study the atmosphere wherever you have had these proceedings during the last seven, eight or 10 years and even longer, must have realised that this is a subject which requires our very special attention. I have a whole list of cases here. A case is brought up against some policeman here or some official there, why? Because after some bloody riot he has entered a house in order to search for firearms, or to get evidence, as in the case at Midnapore, where a bomb was thrown Political feeling is aroused directly the officer does his duty in a disaffected area, such as Midnapore. Some Members of the Committee may remember that after what was, I think, the third murder, the Governor himself, if I remember rightly, encouraged the idea that there should be an inquiry as to any damage which might have been done in certain persons' houses when the officers were making a lightning search in order to try to get evidence with regard to that horrible tragedy.
It is a question which requires our special attention. I had hoped that the Solicitor-General would have indicated that it was a question which he could consider along the lines suggested by the Noble Lady, which would have met the situation at any rate for a period of time. I believe that the new Clause of the Secretary of State, whose absence we all deplore, does not meet the case which has been presented by the Civil servants of Bengal. Therefore, I hope that the learned Solicitor-General will still consider the matter further.
§ 4.52 p.m.
§ Lieut.-Colonel APPLINI want to ask my hon. and learned Friend the Solicitor-General whether he can explain what appears to me to be a contradiction. Sub-section (2, b) of the new Clause says:
Provided that nothing in this Subsection shall be construed as restricting the power of the Federal or a Provincial Legislature to amend the said Section by a Bill or Amendment introduced or moved…That seems to me completely to contradict Sub-section (1), which says:No Bill or Amendment to abolish or restrict the protection afforded to certain servants of the Crown in India by Section 197 … shall be introduced or moved …64 Surely that is a contradiction. If it is possible for the Federal or Provincial Legislature to amend the Indian Penal Code to that extent, they can do anything they like apparently, and all our work is wasted, unless there is some explanation.
§ 4.54 p.m.
§ The SOLICITOR-GENERALSubsection (1) says that:
No Bill or Amendment to abolish or restrict the protection afforded…shall be introduced or moved…without the previous sanction of the Governor-General in his discretion…Sub-section (2) goes on to say that the powers conferred upon a local government by the said Section 197 shall be exercised by the Governor in his individual judgment. That is merely a proviso to make it clear that Sub-section (2), which says how the powers shall be exercised, does not negative the possibility contemplated by Sub-section (1), of a Bill or Amendment being introduced, provided the Governor-General or Governor gives his sanction.
Duchess of ATHOLLIs it not clear in Sub-section (2) that these powers might be restricted and completely abolished? That is why I wished to make an Amendment.
§ 4.55 p.m.
§ Mr. RAIKESI want to put one question to the learned Solicitor-General regarding this new Clause. I see that in Clause 259 of the Bill the consent of the Governor-General or Governor is required to any civil or criminal proceedings to be brought against any official in his official capacity before this Bill passes into law. If that principle is accepted in Clause 259 surely the protection it affords becomes more important after this Bill is passed? If the protection is given in Clause 259 why is it to be swept away as soon as this Bill becomes an Act?
§ The SOLICITOR-GENERALI should be surprised if my hon. Friend who is learned in the law has not realised that there is all the difference in the world between passing an indemnity for past acts and passing a form of indemnity relating to acts in the future. It is not unusual to have an indemnity for what has happened in the past. I do not think anyone will suggest that the principle of Clause 259 should be extended for all time.
§ 4.57 p.m.
§ Viscount WOLMERThere is one very important point to which no reply has been given. I think we all agree that Clause 259 is necessary in regard to acts that have been done in the past, but will not some provision such as has been suggested be necessary for the future? Why is Clause 259 necessary? Because there are certain suits pending, or the likelihood of their being pending at the appointed date. Therefore the Government have put in this safeguard in regard to acts that have been done in the past. They have extended the safeguard to civil proceedings. The learned Solicitor-General has not answered the point of my hon. and gallant Friend the Member for Bournemouth (Sir H. Croft), that when you get tragic occurrences, such as that at Midnapore, where the police have to make domiciliary searches, often very hurriedly and very drastically, at a time of acute feeling in the district, officers may be exposed to a host of civil actions. In fact there has been an experience in Midnapore in regard to demage which officers were alleged to have done in the houses which they searched.
I understand that the position under the Bill is that anything that was done at Midnapore will be covered by Clause 259, but that if anything is done in exactly similar circumstances in future none of these officers would be protected against actions which may be purely vexatious in their intention. I quite realise the force of what the learned Solicitor-General has said about the undesirability of droit administratif, which puts a civil servant in a superior position to that of the ordinary subject of the Crown, but surely there are very special circumstances such as those to which my hon. and gallant Friend the Member for Bournemouth has drawn attention which are not met sufficiently in the new Clause. I ask whether between
§ now and the Report stage the Government would consider the possibility of some procedure for dealing with what I would call a local state of emergency. Where there has been a communal riot, or a riot against the authority of the Crown, where you have a great state of excitement prevailing, it may be possible to declare that a state of emergency exists, and in such circumstances the acts that the police are compelled to take in the exercise of their duty should not be subject to the sort of civil suits which we have in mind. It seems to me that there is a clear distinction in circumstance between the ordinary, everyday action of the police, which I agree ought not to be put in a special category, and action which the police may have to take in periods of great emergency, or of great local excitement. Would it be possible for the learned Solicitor-General to give us an assurance that this matter will, at any rate, be considered between now and the Report stage? Otherwise, it seems that the point made by the hon. and gallant Member for Bournemouth is not really met.
§ The CHAIRMANDoes the hon. and learned Member for Ashford (Mr. Spens) wish to move his Amendment?
§ Mr. SPENSIn view of what the learned Solicitor-General has said, although I am bound to say I am not quite—
§ The CHAIRMANIs the hon. Member rising on his Amendment? There is no question before the Committee.
§ Motion made, and Question put, "That the Clause be added to the Bill."
§ The Committee divided; Ayes, 188; Noes, 36.
67| Division No. 155.] | AYES. | [5.5 p.m. |
| Adams, D. M. (Poplar, South) | Bossom, A. C. | Campbell, Vice-Admiral G. (Burnley) |
| Adams, Samuel Vyvyan T. (Leeds, W.) | Boulton, W. W. | Campbell-Johnston, Malcolm |
| Albery, Irving James | Bower, Commander Robert Tatton | Cautley, Sir Henry S. |
| Assheton, Ralph | Bowyer, Capt. Sir George E. W. | Cazalet, Thelma (Islington, E.) |
| Attlee, Clement Richard | Brass, Captain Sir William | Cazalet, Capt. V. A. (Chippenham) |
| Baldwin, Rt. Hon. Stanley | Briscoe, Capt. Richard George | Chamberlain, Rt. Hn. Sir J. A. (Birm, W.) |
| Balfour, Capt. Harold (I. of Thanet) | Brocklebank, C. E. R. | Chamberlain, Rt. Hon. N. (Edgbaston) |
| Banfield, John William | Bullock, Captain Malcolm | Chorlton, Alan Ernest Leofric |
| Barton, Capt. Basil Kelsey | Burgin, Dr. Edward Leslie | Cleary, J. J. |
| Beauchamp, Sir Brograve Campbell | Butler, Richard Austen | Cooke, Douglas |
| Bevan, Aneurin (Ebbw Vale) | Cadogan, Hon. Edward | Cooper, A. Duff |
| Blindell, James | Campbell, Sir Edward Taswell (Brmly) | Cove, William G. |
| Cranborne, Viscount | Joel, Dudley J. Barnato | Pickering, Ernest H. |
| Crossley, A. C. | Johnstone, Harcourt (S. Shields) | Pickthorn, K. W. M. |
| Daggar, George | Jones, Morgan (Caerphlily) | Powell, Lieut.-Col. Evelyn G. H. |
| Davidson, Rt. Hon. J. C. C. | Lamb, Sir Joseph Quinton | Procter, Major Henry Adam |
| Davies, Maj. Geo. F. (Somerset, Yeovil) | Lambert, Rt. Hon. George | Ramsbotham, Herwald |
| Davies, Rhys John (Westhoughton) | Lansbury, Rt. Hon. George | Ramsden, Sir Eugene |
| Denville, Alfred | Leckle, J. A. | Reed, Arthur C. (Exeter) |
| Despencer-Robertson, Major J. A. F. | Leech, Dr. J. W. | Reid, James S. C. (Stirling) |
| Dugdale, Captain Thomas Lionel | Leighton, Major B. E. P. | Reid, William Allan (Derby) |
| Duggan, Hubert John | Lewis, Oswald | Rhys, Hon. Charles Arthur U. |
| Eales, John Frederick | Liddall, Walter S. | Rosbotham, Sir Thomas |
| Edwards, Charles | Lindsay, Noel Ker | Rothschild, James A. de |
| Ellis, Sir R. Geoffrey | Lister, Rt. Hon. Sir Philip Cunliffe- | Runciman, Rt. Hon. Walter |
| Elmley, Viscount | Lloyd, Geoffrey | Runge, Norah Cecil |
| Evans, R. T. (Carmarthen) | Locker-Lampson, Com. O. (H'ndsw'th) | Russell, Alexander West (Tynemouth) |
| Fleming, Edward Lascelles | Logan, David Gilbert | Russell, R. J. (Eddisbury) |
| Foot, Isaac (Cornwall, Bodmin) | Lovat-Fraser, James Alexander | Rutherford, Sir John Hugo (Liverp'l) |
| Fraser, Captain Sir Ian | Lumley, Captain Lawrence R. | Salmon, Sir Isidore |
| Fremantle, Sir Francis | Lunn, William | Salt, Edward W. |
| Ganzoni, Sir John | MacAndrew, Lieut.-Col. C. G. (Partick) | Samuel, Rt. Hon. Sir H. (Darwen) |
| Gardner, Benjamin Walter | MacAndrew, Capt. J. O. (Ayr) | Sassoon, Rt. Hon. Sir Philip A. G. D. |
| Gilmour, Lt.-Col. Rt. Hon. Sir John | Macdonald, Gordon (Ince) | Savery, Samuel Servington |
| Goldie, Noel B. | MacDonald, Rt. Hon. J. R. (Seaham) | Shakespeare, Geoffrey H. |
| Granville, Edgar | MacDonald, Malcolm (Bassetlaw) | Shaw, Captain William T. (Forfar) |
| Grattan-Doyle, Sir Nicholas | McEntee, Valentine L. | Smith, Tom (Normanton) |
| Griffith, F. Kingsley (Middlesbro'. W.) | McKie, John Hamilton | Smithers, Sir Waldron |
| Griffiths, George A. (Yorks, W. Riding) | Maclay, Hon. Joseph Paton | Somervell, Sir Donald |
| Groves, Thomas E. | McLean, Major Sir Alan | Southby, Commander Archibald R. J. |
| Grundy, Thomas W. | Manningham-Buller, Lt.-Col. Sir M. | Spender-Clay, Rt. Hon. Herbert H. |
| Guest, Capt. Rt. Hon. F. E. | Margesson, Capt. Rt. Hon. H. D. R. | Stanley, Rt. Hon. Lord (Fylde) |
| Guinness, Thomas L. E. B. | Mason, Col. Glyn K. (Croydon, N.) | Stanley, Rt. Hon. Oliver (W'morland) |
| Gunston, Captain D. W. | Mayhew, Lieut.-Colonel John | Stewart, J. Henderson (Fife, E.) |
| Hacking, Rt. Hon. Douglas H. | Mills, Major J. D. (New Forest) | Strauss, Edward A. |
| Hamilton, Sir George (Ilford) | Mitchell, Harold P. (Br'tf'd & Chisw'k) | Strickland, Captain W. F. |
| Hammersley, Samuel S. | Mitchell, Sir W. Lane (Streatham) | Sueter, Rear-Admiral Sir Murray F. |
| Harris, Sir Percy | Molson, A. Hugh Elsdale | Summersby, Charles H. |
| Harvey, George (Lambeth, Kenn' gt'n) | Moreing, Adrian C. | Sutcliffe, Harold |
| Haslam, Henry (Horncastle) | Morrison, G. A. (Scottish Univer'ties) | Thorne, William James |
| Haslam, Sir John (Bolton) | Muirhead, Lieut.-Colonel A. J. | Tinker, John Joseph |
| Henderson, Sir Vivian L. (Chelmsford) | Munro, Patrick | Tufnell, Lieut.-Commander R. L. |
| Hepworth, Joseph | Nation, Brigadier-General J. J. H. | Wallace, Captain D. E. (Hornsey) |
| Herbert, Major J. A. (Monmouth) | Nicholson, Godfrey (Morpeth) | Ward, Lt.-Col. Sir A. L. (Hull) |
| Herbert, Capt. S. (Abbey Division) | O'Donovan, Dr. William James | Ward, Sarah Adelaide (Cannock) |
| Hills, Major Rt. Hon. John Waller | O'Neill, Rt. Hon. Sir Hugh | Wedderburn, Henry James Scrymgeour |
| Holdsworth, Herbert | Ormsby-Gore, Rt. Hon. William G. A. | Wedgwood, Rt. Hon. Josiah |
| Hope, Capt. Hon. A. O. J. (Aston) | Orr Ewing, I. L. | Whiteside, Borras Noel H. |
| Horsbrugh, Florence | Palmer, Francis Noel | Wilson, Lt.-Col. Sir Arnold (Hertf'd) |
| Howitt, Dr. Alfred B. | Parkinson, John Allen | Young, Rt. Hon. Sir Hilton (S'v'noaks) |
| Hudson, Capt. A. U. M. (Hackney, N.) | Patrick, Colin M. | |
| Hume, Sir George Hopwood | Peat, Charles U. | TELLERS FOR THE AYES.— |
| Inskip, Rt. Hon. Sir Thomas W. H. | Penny, Sir George | Sir Victor Warrender and Dr. |
| Jackson, Sir Henry (Wandsworth, C.) | Percy, Lord Eustace | Morris-Jones. |
| NOES. | ||
| Acland-Troyte, Lieut.-Colonel | Croft, Brigadier-General Sir H. | Nunn, William |
| Allen, Lt.-Col. Sir William (Armagh) | Emmott, Charles E. G. C. | Remer, John R. |
| Applin, Lieut.-Col. Reginald V. K. | Goodman, Colonel Albert W. | Smiles, Lieut.-Col. Sir Walter D. |
| Astbury, Lieut.-Com. Frederick Wolfe | Gretton, Colonel Rt. Hon. John | Somervllie, Annesley A. (Windsor) |
| Atholl, Duchess of | Hales, Harold K. | Taylor, C. S. (Eastbourne) |
| Bailey, Eric Alfred George | Hartiand, George A. | Taylor, Vice-Admiral E. A. (P'dd'gt'n, S.) |
| Batey, Joseph | Keyes, Admiral Sir Roger | Thorp, Linton Theodore |
| Blaker, Sir Reginald | Knox, Sir Alfred | Wayland, Sir William A. |
| Broadbent, Colonel John | Lennox-Boyd, A. T. | Williams, Herbert G. (Croydon, S.) |
| Brown, Brig. Gen. H. C. (Berks., Newb'y) | Levy, Thomas | Wolmer, Rt. Hon. Viscount |
| Cecil, Rt. Hon. Lord Hugh | Lockwood, Capt. J. H. (Shipley) | |
| Churchill, Rt. Hon. Winston Spencer | Marsden, Commander Arthur | TELLERS FOR THE NOES.— |
| Craddock, Sir Reginald Henry | Nicholson, Rt. Hn. W. G. (Petersf'ld) | Mr. Wise and Mr. Raikes. |
Question, "That the Clause be read a Second time," put, and agreed to.