GOVERNMENT OF INDIA ACT (AMENDMENT) BILL. (Hansard, 1 September 1939)

§ The Under-Secretary of State for India (Lieut.-Colonel Muirhead)
I beg to move, "That the Bill be now read a Second time."
The substantial Clause of this Bill is Clause 1. Sub-sections (1) and (2) of that Clause reproduce the same Amendments to the Government of India Act, 1935, as would have been effected by Clauses 4 and 5 of the Miscellaneous (Amendments) Bill, which has already been passed in another place and is awaiting consideration by this House. Sub-section (3) deals with a connected point which has come to light since the Miscellaneous (Amendments) Bill was drafted, and which it was intended to cover when the Bill came to this House. The main provision is contained in Subsection (1). The origin and purpose is as follows: Generally speaking, the scheme of the 1935 Act is that executive authority follows legislative power. Consequently the Government at the Centre has executive authority in connection with the subjects in List I, over which it has exclusive legislative power. Likewise the Provincial Governments have executive authority and power in respect of all the matters in List II, over which they have exclusive legislative power. In respect of matters contained in the Concurrent List the arrangement is that as the matters are of their nature primarily provincial, the concurrence of the Centre is merely needed in order to secure legislative uniformity where necessary, the executive 152 authority, generally speaking, being in the Provinces.
The general position is secured by Section 313 of the Government of India Act, but I think there is no doubt that the restriction on the Centre contained in Section 313 was insufficiently considered by the framers of the Act of 1935 in its relation to Section 102. Section 102 clearly recognises that in war conditions it might be impossible to maintain a rigid legal distinction between the powers of the Central and Provincial Governments and therefore Section 102 enables the Governor-General to declare by proclamation that a grave emergency exists whereby the security of India is threatened, whether by war or internal disturbance. By that proclamation the Centre derives exceptional and emergency authority to legislate in connection with matters in the Provincial Legislative List. As the Act stands, however, the restriction imposed by Section 313 brings it about that while the Centre can legislate on Provincial subjects they cannot acquire the executive authority necessary to deal with these matters. For instance, they cannot issue directions to the Provincial Governments as to war-time policy in relation to subjects in the Provincial List. They cannot supervise instructions issued by the provincial governments themselves and in particular the Central Government cannot make rules or regulations with regard to Provincial Subjects nor can they effectively legislate to give themselves the necessary power, because it has been legally established that the making of rules is not a legislative but an executive power.
The Government of India, therefore, to be able to legislate in order to give themselves this power, requires covering authority in the Government of India Act, hence the necessity for this Amendment. Subsection (1), it will be noted, is confined strictly to war emergency, it does not extend as does Section 102 to questions of internal disturbance. It has a twofold effect. In the first place paragraph (a) makes the Central Government legally competent to issue instructions to the Provincial Governments as to the exercise of their own executive power, and paragraph (b) enables Acts made, under Section 102, by the Central Government dealing with Provincial Subjects to confer powers on the officials of the Central Government whether by Central legislation itself or by rules made there under. There is attached 153 the same proviso as that attached to Section 102 by which the exercise of these powers requires the prior sanction of the Governor-General and thereby ensures that these powers are confined to the appropriate case. Sub-section (2) is a consequential Amendment to Section 124 of the main Act and Sub-section (3) removes a doubt as to whether a proclamation under Section 102 is to be held back until war has actually taken place or whether it can be brought into operation when there is the threat of the imminence of war—in other words it is putting the Government of India in the same position as Parliament placed the Government last week in this country when we passed the Emergency Powers (Defence) Act. Clause 2 merely makes the provision of the Bill retrospective from 1st April, 1937.

§ Mr. Wedgwood Benn
This Bill is a war Measure and as such we make no criticism upon it. But I should like to say one word as I myself, for a short time 10 years ago, was concerned in the matter of the Government of India. I hope that my words will reach those colleagues in India with whom we cooperated in trying to set up a free democracy there. I hope that they will realise that in the struggle in which we are about to enter their cause is ours and our victory will be theirs.

§ Mr. Sorensen
May I express a sincere hope that some of the provisions of the Bill will not be carried beyond the period of the national emergency? I look upon the Bill with a certain amount of appre-*hension. There was on the stocks on the beginning of the emergency a Bill which itself was rather suspicious. Its provisions seemed likely to abrogate in some measure such mild extension of democracy to the Indian peoples as was contemplated in the original Bill. It must be admitted that this Bill does severely limit such powers as the Provincial legislatures already possess, and seems to give rather 154 more power to the Central legislature which, as we know, is far less democratic than the Provincial legislatures. This is possibly one of the worst fruits of the grave position in which we find ourselves. It certainly limits the development of democracy in India, and I am afraid will be viewed with a certain amount of apprehension by Indian nationalists. Therefore I hope we may have an assurance that the Bill will only last as long as the actual emergency exists, and that when that comes to an end the Bill will be repealed or at any rate the dangerous Clause in the Bill will be withdrawn.

§ Miss Wilkinson
I hope that when the Bill is passed the hon. and gallant Member will complete the necessary arrangements to make the position clear to the people of India. There is among the Congress people and those who represent the Indian people a very great deal of sympathy with this country in her fight for liberty. Even those who have been imprisoned lately have shown by their writings and speeches the greatest sympathy with this country in its stand against Hitler. I suggest that this spirit is not one which should be lightly thrown away and should not be ridden over roughshod by the machine. I hope that these powers will be kept in the background, and in that case a great deal more will be undertaken by the vast masses of the Indian people in any fight for liberty.

§ Lieut.-Colonel Muirhead
I should like to thank very much the right hon. Member and the hon. Lady for the sentiments which they have expressed with regard to the community of interests between India and this country in the present crisis. With regard to the point raised by the right hon. Member, I think he and the whole House can be perfectly sure that the Bill does not interfere with the normal relationship between the Centre and the Provinces as laid down by the Government of India Act, 1935, but I think it will be recognised that this measure of executive authority is really what one might call the common-sense complement of the power of legislation which was expressly put into the Act of 1935. I do not think there is anything of a very far- 155 reaching character. As to the length of time that the Bill will operate, the hon. Member for West Leyton (Mr. Sorensen) will, I am sure, not wish me to give any specific post-war pledge at this moment, but I would like to emphasise the point again that these powers do not follow to the full extent the powers already given as regards legislation by Section 102. They specifically refer to the question of war emergency and do not refer to the question of internal disturbances. I hope that with that assurance the hon. Member and the House, and indeed India, will be satisfied.