GOVERNMENT OF INDIA ACT, 1935. (Hansard, 28 June 1937)

The Under-Secretary of State for India (Lord Stanley)
I beg to move, That an humble Address be presented to His Majesty, in pursuance of the provisions 1736 of Section 309 of the Government of India Act, 1935, praying that the Government of India (Federal Court) Order, 1937, be made in the form of the draft laid before Parliament. I think that, with your permission, Mr. Deputy-Speaker, and with the agreement of the House, it will be convenient if I give now some explanation of all the four Orders referred to in the Motions which stand on the Paper. Those who know anything about these Orders will realise 1737 that there is nothing in them that is in any way of a contentious nature; in fact, they all follow on decisions which have already been taken in this House. The first Order relates to the Federal Court. It will be remembered that last December an Order was approved by the House which brought into force, with effect from 1st October next, the provisions of the Government of India Act, 1935, relating to the Federal Court, and which at the same time fixed the salary and pension of the first holder of the post of Chief Justice, and also the salaries of the remaining judges. It was realised at the time that further provisions would be required to fix the pensions of the other judges and to make provision with regard to leave for all the judges, including the Chief justice. This is what the present Order does; it merely carries out what I understand was the intention when the original Order was moved.
The second Order, which deals with the High Court, simply makes a change in the title of certain judges. The reasons for this are a little complicated. In the framing of the Government of India (High Court Judges) Order, which was approved last February, it was found necessary to avoid the use of the word "additional" in the official designation—"additional judicial commissioner"—of the judges of one of the classes of courts now classed as Provincial High Courts, in order to avoid confusion between this designation and the designation "additional judge," as indicating a judge appointed temporarily by the Governor-General to a High Court, including a judicial commissioner's court, under the provisions of Section 222 of the new Act. With this object it was decided to substitute for "additional judicial commissioner" the designation "assistant judicial commissioner," and two Indian Acts to which the expression "additional judicial commissioner" owes its origin were adapted accordingly by the Government of India (Adaptation of Indian Laws) Order, 1937. It has now been decided that it would be preferable to substitute for this rather long title the simple designation of judges. It is rather a complicated explanation of what is really a very simple thing, which is purely a change of title.
With regard to the third Order, in March last an Order was approved by the two Houses which adapted the provisions of existing Indian Acts, both central and 1738 provincial, so as to bring them into accord with the provisions of the Government of India Act. Naturally at that time we were not able to deal with all the changes that were likely to become necessary by 1st April. In fact the actual Order that was passed dealt only with changes which became necessary owing to the introduction of the Government of India Act up to the beginning of December last. This new Order fills the gap between December and 1st April, when the new constitution came into force. It also includes a few corrections and omissions from the last Order. When hon. Members remember the enormous scope of the last Order and find that only some 22 items are required to be dealt with on this occasion as corrections of errors or the filling up of omissions, I think they will agree that the work has been extremely well done. Exactly the same explanation fits the final order.

§ Mr. Deputy-Speaker (Sir Dennis Herbert)
The House has heard what the Noble Lord has said with regard to taking all four Orders at the same time. If the House approves, I think that will be a convenient course to adopt if it meets the view of the House generally.

§ Mr. Morgan Jones
The Noble Lord very modestly said that the third Order made some corrections in some slight particulars. I hope he has waded through the Schedule. It seems to me rather hard upon the House to invite it to approve of an Order containing a schedule involving so many cross-references. I do not pretend to understand it. It is much too hard work for any individual Member to wade through all the cross-references. I should have been very glad if the Noble Lord could have afforded the House a short White Paper to indicate the nature of the changes the Government propose and, if there is another batch of this sort, I hope he will do it. Subject to that, I have no objection at all to the Orders being approved.

Lord Stanley
I do not think another Order of the kind is at all likely, as all the laws have now been adapted, but if a similar situation should arise I will certainly bear the hon. Gentleman's suggestion in mind.

Lord Stanley
I beg to move, "That the Debate be now adjourned."

§ Mr. Wedgwood Benn
It may be ignorance on my part, but I should like the Noble Lord to explain why, when the House appears to be ready to give approval to these Orders, he proposes at each stage the Adjournment of the Debate?

Lord Stanley
I think it is a procedure that has been generally accepted. The Orders will have to be passed in another place. In case any Amendment is made to them there it is more convenient that the Debate should be adjourned. If any Amendments were to be made, these would be discussed on the resumed Debate, as soon as they have been passed in another place.

§ Mr. Benn
This is a complete surprise to me. What appears to be happening is that we are asked to give approval, and, if people in another place see fit to make Amendments, it comes back to us for us to give our assent. I think we are a self-governing body which decides Yes or No to Orders which have been carefully drafted by the Government. It is an innovation and comes as a surprise to any Parliamentary hand to learn that all we can do is to send them to another place and ask what their pleasure is, to which, when it is ascertained, we shall give our assent.

Lord Stanley
It is so that we should not close the door. We give a provisional assent this evening and it then goes to another place. If they make any Amendments we get a further chance of discussing them. I think the right hon. Gentleman knows that these Orders must go to His Majesty with the approval of both Houses. I do not think there is any departure from normal procedure. A great number of Orders have been passed since 1740 the Government of India Act, and generally with the understanding and approval of all sides of the House.

Lord Stanley
I beg to move, "That the Debate be now adjourned."

§ Mr. Benn
This gives me an opportunity to try to clarify the situation. Is it a fact that, in regard to these Orders relative to the Government of India Act, an entirely new procedure as between the two Houses has been set up?

Lord Stanley
I think it has been followed in the case of all previous Orders. I must apologise to the House. I did not look into the question of procedure because this procedure has been adopted on previous occasions, and I thought the House would be ready to follow it again.

§ Mr. Benn
I am not complaining of the Noble Lord. We are all anxious to facilitate his work. I am only asking for information. May I ask the Parliamentary Secretary to the Treasury whether it is a fact that in connection with these Orders, which after all are in common form, a new Parliamentary procedure has been adopted? It is a very simple question to answer.

§ The Parliamentary Secretary to the Treasury (Captain Margesson)
I should not like precisely to say that the procedure adopted after the passage of the Government of India Bill was a new procedure or one which had been used before and revived for the purpose of these Orders. All I remember is that some time ago we instituted this procedure and the matter was explained to the House at the time. The Orders are brought before this House. They are then sent to another place, and I believe I am right in saying that they can be amended there and then come back to us for final decision. I cannot give an answer as to whether it is an old or a new procedure, but we have 1741 adopted it since the first Orders came after the passage of the Government of India Bill, when the Under-Secretary of State explained to the House the procedure that we were going to follow.

§ Mr. Morgan Jones
I took an intimate personal interest in this matter in the earlier stages, and I speak from memory and therefore subject to correction, but my recollection is entirely in conformity with what the Patronage Secretary has said. The Under-Secretary gave me to understand that we were following precedent in taking the line that we then took in respect of this kind of Order, and in practice we have followed that procedure meticulously in respect of all the Orders carried by this House and another place under the Government of India Act, 1935. Whether it has been in accordance with precedent or not, I cannot say, but that has consequently been the procedure during the last two years.

§ Mr. Lawson
I cannot understand why there should be any different procedure in reference to the Government of India Bill and these Orders compared with any other Orders. The House knows quite well that from time to time important and complicated Orders are taken late at night in this House, and if there was a case for waiting for the learned opinion of members of another place some of the very important Orders from the Ministry of Labour would be useless. I cannot understand why there should be any different procedure in respect of these Orders compared with any other Orders.

§ Captain Margesson
I can explain the position to the hon. Member. The India Orders can be amended whereas the ordinary Orders of the House are not capable of amendment.

§ Mr. Kelly
This seems to be rather a curious procedure. Is it to be taken that we have given an assent without voting, and that when the Orders go to another place they can amend them? Are we in the position of having given assent to these Orders, and not being entitled to amend them in the event of their coming back to us from another place?

§ Mr. Deputy-Speaker
I would point out to the hon. Member that it is perfectly clear that if the Debate is adjourned 1742 without any decision being come to, the House is not bound in any way.