GOVERNMENT OF INDIA ACT, 1935, AND GOVERNMENT OF BURMA ACT, 1935. (Hansard, 30 June 1938)

§ The Under-Secretary of State for India (Lieut.-Colonel Muirhead)

I beg to move, That an humble Address be presented to His Majesty in pursuance of the provisions of Section 309 of the Government of India Act, 1935, praying that the Government of India (High Court Judges) (Amendment) Order, 1938, he made in the form of the draft laid before Parliament I think it has been customary on other occasions with Orders of this nature, which 2271 are comparatively minor and non-controversial in character, to give, in connection with the first Order, some remarks on all the Orders so as to save time, and with the permission of the House I will follow that procedure on this occasion. The first Order relates to the Government of India (High Court Judges) and corrects a drafting error in the Government of India (High Court Judges) Order, 1937. The three Orders to be moved simply contain drafting Amendments. They are cases where the original Order had certain definite intentions, but owing to certain drafting irregularities those intentions are not now being carried out. In the original Order it was provided that the conditions of service of such judges should continue to be governed by the rules to which they were subject immediately before the commencement of the Order.

The intention, when the Order was drafted, was that the conditions of service of judges appointed prior to 1st April, 1937, should remain unchanged. Section 104 of the Government of India Act, 1919, made certain provisions for the payment of judges, but those provisions were contained in the Act and not in the rules under the Act. As that is so, they are not continued in force by paragraph 27 of the Government of India (High Court Judges) Order, 1937, although they have been made applicable to judges appointed after the 1st April of that year by paragraph 23 of the Order. The draft Order amends paragraph 27 of the Order, in order to bring into line the judges who were serving before that date.

The Second Order, the Government of Burma (High Court Judges) (Amendment) Order, 1938, simply corrects the position in exactly the same way as is done by the Government of India (High Court Judges) (Amendment) Order. The third Order, the Government of Burma (Adaptation of Laws) (Amendment) Order, again corrects a drafting error. It has come to light that the adaptation made by the original Order in Sub-section (5) of Section 48 of the Indian Income Tax Act, 1922, has the effect of depriving, as from the 1st April, 1937, subjects of Indian States not resident in British Burma of the right to refund under Section 48 of the Act. This Section sets out the circumstances under which various categories of persons are entitled to refund 2272 of the tax. It is clear that the position which has resulted from the adaptation in question was never intended, the more so as it is directly repugnant to the spirit of Section 45 of the Government of Burma Act, which prohibits discrimination in matters of taxation against British subjects domiciled in the United Kingdom and India, or the subjects of any Indian State. The object of the draft Order is to rectify this mistake, which was obviously a drafting error.

I think on previous occasions there have been certain questions raised regarding the procedure under which these Orders are taken in this House, and although the procedure is now tolerably well known, perhaps I might say a word upon it. These Orders under the Government of India and the Government of Burma Acts differ from the Orders on other subjects to which the House is accustomed, in that they are subject to amendment, and the Orders when finally approved by Parliament have to be approved in similar form by both Houses. It is on that account that on this occasion we do not actually approve the Orders. The Orders have not yet been considered in another place, and it is possible that Amendments may be made there. It is on that account that it is convenient in connection with each Order that I should move that the Debate be now adjourned.