CLAUSE 100.—(Subject matter of Federal and Provincial laws.) (Hansard, 27 March 1935)

§ The CHAIRMAN
There are two-Amendments down to this Clause in the name of the hon. Member for Gorton (Mr. Bailey) and other hon. Members—in page 61, line 6, at the end, to insert: Provided that the Federal Legislature has not power to make any law which imposes on goods imported into the Federation which are consigned from and in whole or in part produced or manufactured in the United Kingdom, a higher duty of customs than is for the time being imposed on like goods imported into the Federation which are consigned from any other country."— and in page 61, line 22, at the end, to add: (5) Notwithstanding anything in this Act, neither the Federal Legislature nor a Provincial Legislature has power to make any law which imposes any duty of customs, transit duty, or the like on any goods consigned from any part of British India into any other part of British India. I have come to the conclusion that they should be dealt with as a new Clause.

§ Mr. OSWALD LEWIS
As I understand it, the purpose of the Clause is to provide a method whereby the restrictive powers of legislative competence of the Centre and of the Provinces may be determined. I suggest to the Committee that the method proposed is a wrong method, and I hope very much that, if a sufficient number of other hon. Members take that view, the Secretary of State may yet reconsider the matter and deal with it at some later stage in the Bill. I suggest that it is a wrong method for this reason. All federal systems suffer from a common weakness. It frequently happens that there is a doubt as to the validity of a law that has been passed. A doubt may arise, owing to the circumstances of the Central Assembly or the Assembly of Provinces having limited powers, as to whether those powers have been exceeded in passing a particular law. That is common to all federal systems. It is common knowledge that there are many people in India who are rather prone to litigation. Therefore, it 1929 is not unreasonable to suggest that, in laying down a method allocating these powers, we should try to find a way which would lead to as little litigation and dispute as possible. I suggest that the method proposed in the Bill is the one method of all others most likely to lead to doubt as to the validity of the law and to consequent litigation. I have very good authority for saying that, because the Joint Select Committee themselves pointed out quite definitely in paragraph 55 that: It seems clear that the attempt … to allocate powers over the whole field of legislation by the expedient of specific enumeration must tend considerably to increase the danger of litigation by multiplying points of possible inconsistency. That is obviously true. There were two possible alternative methods, two precedents, which the Government had before them, what is known as the Australian principle and what is known as the Canadian principle. The Australian principle, roughly, is that powers which are not given to the Centre fall to the Provinces. That is to say, the Province has residuary legislative powers. The Canadian principle is that the residuary power rests with the Centre, and the Provinces only have specific powers. The method proposed in this Clause is that in each case those powers are specific. It is precisely when you come to specify a power that difficulty arises. It would not be too much to say that by specifying the power in both cases we are doubling the prospects of doubt and increasing the prospects of litigation.
The Select Committe having pointed out this risk go on to support the proposal in the Bill. They set forward two reasons for doing that, neither of which seems to me to be a very strong one. The first reason they give is one which they describe as a matter of immediate political expediency, namely, that Indian opinion is divided on this matter, some thinking that the Australian method should be followed and others that the Canadian method should be followed. Therefore, the Joint Select Committee argue that neither of those methods should be followed. If that argument were to be pressed generally and we were to say that because a large body of Indians want one method and another large body wants another method, that 1930 we should necessarily have neither, we might have no Bill at all. I cannot feel that that is an argument to which great weight attaches. The Joint Select Committee then give a second argument, which they describe as a matter of constitutional substance, in which they say that the logical conclusion of the proposal is that residuary legislative powers should be allocated to the Provinces. That is to say that the Australian method should be followed. I cannot make out how they arrive at the opinion that that is the logical conclusion. It seems to me that a perfectly good case could be made out for the logical conclusion being that the Canadian and not the Australian method should be adopted.
I should prefer either the Canadian or the Australian method to the method proposed in the Bill. If I were given the choice I should prefer the Canadian method of specific powers being given to the Provinces and residuary powers being given to the Centre. If the Secretary of State at this juncture cannot promise to reconsider the matter I should be grateful if he would tell the Committee what in his view is the objection to the Canadian principle. It might be argued that after a passage of time it might be found desirable for the Provinces to have extended powers. Surely, in that case some provision could be put into the Bill whereby the Centre could delegate their powers in certain respects to the Provinces. I will not detain the Committee longer, because the point is a clear one, as to which of the three methods, the Australian, the Canadian or the method proposed in the Bill should be adopted; but I should be glad if the Secretary of State would tell us why the Government propose the method in the Bill, which seems to me likely to multiply if not to double future litigation, as compared with either the Canadian or the Australian models. I should also be glad if he would tell me what objection there is to the Canadian precedent.

§ Sir S. HOARE
Many of us have been through the same process of thought as my hon. Friend the Member for Colchester (Mr. Lewis), and many of us wish, if it were possible, to restrict the lists. If it had been possible to have one list we should have been glad, but, unfortunately, as in many of these Indian problems, when we came to apply to the 1931 actual facts what we desired, we found it to be impossible. We found that Indian opinion was very definitely divided between, speaking generally, the Hindus who wish to keep the predominant power in the Centre, and the Moslems who wish to keep the predominant power in the Provinces. The extent of that feeling made each of these communities look with the greatest suspicion at the residuary field, the, Hindus demanding that the residuary field should remain with the Centre and the Moslems equally strongly demanding that the residuary field should remain with the Provinces.
My hon. Friend will believe me when I say that the feeling was very deep and very bitter on this issue. We tried year after year not only in the Joint Select Committee but also in the various Round Table Conferences to bridge the difference, but the only bridge that we could find between these two diametrically opposite points of view was to have three lists, namely, the Federal List, the Provincial List and the Concurrent List, each as exhaustive as we could make it, so exhautive as to leave little or nothing for the residuary field. I believe that we have succeeded in that attempt and that all that is likely to go into the residuary field are perhaps some quite unknown spheres of activity that neither my hon. Friend nor I can contemplate at this moment. We find that we have really exhausted the ordinary activities of Government in the three other fields. I agree with my hon. Friend that it means complications. I believe that it also means the possibility of increased litigation. I very much regret that that is so, but I would say to my hon. Friend that in view of the very strong and bitter feeling there is in India on the subject this is the only way to deal with the difficulty.

§ Mr. A. SOMERVILLE
There are three lists, the Federal, the Provincial and the Concurrent lists. If there is disagreement between the Federal Legislature and the Provincial Legislature provision is made for the intervention of the Governor-General, but if the difference is not composed by his intervention, I understand that the wish of the Federal Legislature will prevail. May I ask—

§ The CHAIRMAN
I think the hon. Member had better wait until we come to a later Clause that deals with that point.

§ Mr. BAILEY
I do not want to take up the time of the Committee, and I do not want by an indirect method to evade your Ruling with regard to the two Amendments standing in my name and in the names of my hon. Friends. It is difficult in a Clause of this character to give such wide powers to the Federal Legislature as this Clause gives on a variety of subjects. For that reason I, for one, find it quite impossible to support the Clause. Under the Clause it seems to me that the Federal Legislature will have the power, from a fiscal point of view—

§ The CHAIRMAN
I am afraid that the hon. Member is attempting to say something which I must rule out of order on this Clause. The Clause merely deals with the question of machinery in regard to the relation of the Federal Legislature to the Provincial Legislatures.

§ Sir H. CROFT
Is it possible to raise the matters enumerated in list 1 in the Seventh Schedule?

§ The CHAIRMAN
It is quite out of the question to do that here.

§ Mr. LENNOX-BOYD
I wish to ask a question merely for the purpose of elucidation. Sub-section (4) says: The Federal Legislature has power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof. I imagine that the intention of this Subsection is that the Federal Legislature may make laws in the matter of the Provincial list, or Chief Commissioner's Province, or tribal area, but not a Governor's Province. If I am correct in that, would it not be better to insert the word "Governor's" before the word "Province"?

§ Sir S. HOARE
My hon. Friend is quite right. This Sub-section deals with the Commissioners' Provinces, but I do not believe that anywhere we call a Province a Governor's Province.

§ Colonel GRETTON
Are we to understand from your ruling, Sir Dennis, that it is not competent to discuss matters which are set out in the Seventh Schedule? May I ask if that ruling would preclude the Committee from altering that Schedule if this Clause had received the previous assent of the Committee?

§ The CHAIRMAN
Certainly not. The whole point is that we can discuss the Schedule when we come to it and not before. It is quite open to discuss and amend the Schedule when reached.

§ Colonel GRETTON
To discuss and amend it?

§ The CHAIRMAN
It is open to the Committee to amend the Schedule when we come to it.