CLAUSE 221.—(Jurisdiction of existing High Courts.) (Hansard, 21 May 1935)

§ The ATTORNEY-GENERAL
I beg to move, in page 126, to leave out lines 10 to 14.
This Amendment must be considered with the first and the third Amendments to Clause 222, in page 126, line 15, to leave out "administrative," and in line 34, at the end, to insert: (2) Nothing in this Section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior court which is not otherwise subject to appeal or revision.? In a measure it must also be considered with the second Amendment to Clause 222, in line 20, to leave out paragraph (b). Perhaps I might, for convenience, deal with all the Amendments together, because the effect of them will be to reproduce practically the provisions of Section 107 of the present Government of India Act. As Clause 222 appears in the Bill it contains two alterations of that Section. The Clause reads: Every High Court shall have administrative superintendence over all courts in India 997 and so on. Section 107 of the Government of India Act says that every High Court shall have superintendence over all courts in British India.? Objection has been taken, in a formal and proper way by the judges and others who are familiar with the proceedings of the courts, at the introduction of the new word "administrative." It was never intended that it should have the scope which some people have feared it might have, but, having regard to the representations made to them, the Government feel it better not to introduce that word lest it throw some doubt on the powers of the courts. It is better, for reasons which everybody will under stand, that, if you are going to follow the words of a Section, you should follow them without introducing words which create doubts which might not otherwise arise. We therefore propose to omit the word "administrative." That, together with the new proviso and the new Sub section at the end, which is the third of the Amendments to Clause 122, and coupled with the omission of the Proviso in Clause 221, will put the matter in order.
The new Sub-section, which is the third Amendment to Clause 222, and which I have already read to the House, means that the fear need not be entertained that a High Court, by reason of that word "superintendence," will have power to interfere with the decisions of another court which is not subject to their jurisdiction.

§ Mr. ISAAC FOOT
Did the last Clause similarly give rise to doubts, and has the last Sub-section been introduced for the same purpose?

§ The ATTORNEY-GENERAL
The last Sub-section is to make plain what is the nature of superintendence. The word "administrative" was put in to make it plain that the superintendence was of a certain quality, and that it did not mean that there was power to pass judgment on those courts; but when you remove the word' "administrative" it seems desirable to put in the new Sub section. The omission of the Proviso to Clause 121 is part and parcel of the same recasting of the Clause.

§ Mr. ATTLEE
Does the new Sub section (2) to Clause 222 do exactly the 998 same as the Proviso which is to be omitted? Does it cover the ground?

§ The ATTORNEY-GENERAL
Yes, it does the same as the Proviso that we omit, but in a more workmanlike way, and without the necessity of introducing the word "administrative" in the first part of Clause 222. The second Amendment to Clause 222 is—perhaps the House will allow me to say—insertedto correct a misstatement which I made in Committee. My hon. and learned Friend the Member for Nelson and Colne (Mr. Thorp) moved an Amendment, which I hastily accepted, to put in paragraph (b), on the ground that paragraph (b) appeared in Section 107 of the Government of India Act. I had over looked the fact that the codes of criminal and civil procedure already provided for this power in connection with the ordinary jurisdiction of the Courts, that is to say, the power to direct the transfer of a suit or appeal from one court to another of equal or superior jurisdiction. It seems most undesirable to take one of the powers conferred upon the Courts by the code, and introduce it into a Clause which deals only with administrative matters. Therefore, in the absence of my hon. and learned Friend, I must move to omit the words which on his Motion I accepted. I hope the House will think that I took the proper course in acquainting him fully with my proposal to correct the mistake that I had made. I wrote him a letter. I have not had any reply, and, therefore, I take it that, so far as he is concerned, silence gives consent.

§ Sir H. CROFT
It is indeed tragic to find that, after I have congratulated the Government on having endeavoured to give effect on Report to a proposal which was thrown out in Committee, almost the only other concession which they appear to have granted has been cutaway. That seems to be rather unfortunate, since, at the time when the concession was made, the Government apparently made it with very great pleasure. The difficult legal points in connection with this matter are rather hard for a layman to follow, but it occurred to me that it was essential that this power to transfer suits and appeals should be retained in the High Courts, in view of the fact that, as we all know, there is always local pres- 999 sure against witnesses, and even against judges. Is not this case comparable with the situation which sometimes occurs in this country, when on one circuit there is a great deal of prejudice against a case and it is transferred to another circuit? Do I understand that this matter is quite covered by the Clause which the Attorney-General mentioned I am not sure whether it is proper for me to follow up that point in discussing this Amendment, or whether I ought to wait until the other Amendment is reached, but in his omni bus and over whelming manner he has brought all the Amendments into one discussion. Could I have an assurance that in fact this procedure is absolutely covered, because we attach a great deal of importance to it?

Duchess of ATHOLL
Could the Attorney-General assure the House that nothing in these two Clauses taken together will in any way lessen the power of the High Courts? We want to be assured on that point. Another point is that, although we accept the Attorney-General's assurance that paragraph (b), which it is proposed to omit, is covered in the Civil Procedure Code, is it not a fact that the Provincial Legislatures will have power to alter the Civil Procedure Code, and that, therefore, this power will not be so much, in point of law, assured to the High Courts as it would be if paragraph (b) remained in the Bill? I should like to add, on behalf of my hon. and learned Friend the Member for Nelson and Colne (Mr. Thorp), at whose request the paragraph was inserted, that he has to be away from London to-day on legal business. Otherwise, I ant quite sure that he would have answered the Attorney-General's communication.

§ The ATTORNEY-GENERAL
In my humble and diffident manner, not in my overwhelming manner, I would assure my hon. and gallant Friend that the codes of civil and criminal procedure do make the most complete, satisfactory and clear provision for this power to transfer suits to other courts in such circumstances as my hon. and gallant Friend has mentioned. As regards the point raised by the Noble Lady, there is a paragraph in the Instrument of Instructions which directs the Governor not to assent to any Bill which: 1000 in his opinion.would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by the said Act designed to fill. That, I think, will safeguard the position. I can give the Noble Lady the same assurance that I have given to my hon. and gallant Friend that there is nothing in any of these Amendments which in any way diminishes the powers of the Courts as they exist to-day.