§ 7.36 p.m.
§ Sir REGINALD CRADDOCKI beg to move, in page 35, line 31, at the end, to insert "by the Governor."
§ The SOLICITOR-GENERALWe accept this Amendment.
§ Amendment agreed to.
§ Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill,"
§ 7.37 p.m.
§ Sir GERALD HURSTI should like, if I may, to refer to an Amendment which I put down to this Clause—in page 35, line 38, to leave out "exercise his individual judgment," and insert "consult the Chief Justice." This Amendment has not been called, but I venture to suggest that it is pertinent to raise the matter now. In the paragraphs of the report of the Joint Select Committee which deal with the appointment of Advocates-General in the Provinces, stress is laid upon the very important functions which they have to fulfil. The Advocate-General will be a law officer. He advises the provincial Government on any legal problem which may be referred to him, and represents the Crown in civil and criminal matters.
Paragraph 401 of the report states that it was no part of the intention of the Joint Select Committee to suggest that the office of Advocate-General should have 1285 a political side to it. The position of Advocate-General to a provincial Government is not, therefore, analogous to that of a law officer in this country, and the Committee recommend that he should be entirely free from the trammels of political or party associations, and should be selected by the Governor at his discretion. As I understand it, this recommendation of the Committee would mean that the Governor should make such an appointment entirely at his own independent discretion, without taking any counsel at all. Sub-section (4) of Clause 55 says that the Governor "shall exercise his individual judgment," and, having regard to an earlier provision, in Clause 50, the Governor, in exercising his individual judgment in selecting an Advocate-General, would in normal cases consult his ministers. In other words, he would consult persons who might very well have political, communal or family loyalties, and might regard the appointment as one of political value. If that be the true construction of the Sub-section, it is clearly a departure from the recommendation of the Joint Select Committee that the Advocate-General should be selected-at the discretion of the Governor.
It would seem better to keep the matter entirely out of the political field. If the Governor had to consult his Ministers, it might very well lead to friction, as Ministers might, consciously or sub-consciously, be influenced by their associations, political, communal or otherwise, with a particular nominee. At any rate, that is how it appears to me and to a number of lawyers in India who have communicated their views to me, as well as to other Members of the House who practise the law, and it was with a view to eliciting the views of the Secretary of State or the Solicitor-General on this matter that I put down the Amendment. If my argument is well founded, I suggest that this Sub-section ought not to represent the last word of the Government on the matter.
§ 7.42 p.m.
§ Earl WINTERTONI hope that, when the Solicitor-General replies to my hon. and learned Friend, he will be good enough to tell us what is the effect of the Amendment which he has just accepted. As an old Member of the House, I rather deprecate the acceptance 1286 of any Amendment on a Bill of this kind, however important, without a word of explanation by the Mover or by the Solicitor-General. The Amendment in question is probably an unimportant one, but perhaps the Solicitor-General will be good enough to say what effect it will have on the Clause.
§ 7.43 p.m.
§ The SOLICITOR-GENERALI apologise to the Committee if I was a little over-hasty in indicating our acceptance of the Amendment of my hon. Friend the Member for the English Universities (Sir R. Craddock). The reason for its being accepted is that an exactly similar Amendment to the corresponding Clause dealing with the Advocate-General in the Federal Legislature was agreed to. The Amendment adds nothing to the substance of the Clause; it is a matter of drafting, to make the position more clear.
With regard to the remarks of my hon. and learned Friend the Member for Moss Side (Sir G. Hurst), the position, as the Committee will be aware, is that the words "in his individual judgment" do not in any sense imply that the Governor has not in the last resort complete discretion as to how he shall act. The words "in his individual judgment" are used when the matter is primarily within the ministerial field, while the words "in his discretion" are used when the matter is outside that field. In our view, as the function of the Advocate-General is to advise the Provincial Government, it would be quite wrong to take the question of who should be appointed completely out of the ministerial field, and I think there might be resentment if that were done. It is because we are alive to the importance of the Joint Select Committee's recommendation that this office should not have a political complexion, and therefore should be held by a man with the confidence of successive governments, that we have provided that the Governor shall have the final word. I assure my hon. and learned Friend that the final discretion of the Governor is completely unfettered, and that we are carrying out to the full the recommendation of the Joint Select Committee, but, as the primary function of the Advocate-General is to advise the Provincial Government, it would be wrong if Ministers had no locus standi in suggesting to the Governor a name for his consideration.