§ Order for Second Reading read.
§ 8.23 p.m.
§ The Under-Secretary of State for India (Mr. Arthur Henderson)
I beg to move, "That the Bill be now read a Second time."
This Bill is designed to remove or prevent doubt as to the legal basis for certain emergency powers which have been exercised by the Government of India during the war period. It is a result of certain challenges recently made in three Indian High Courts to the drastic use of the Government of India Emergency Powers, namely, with respect to the requisition of movable property. I would remind the House that under the provisions of the Government of India Act, the Federal Legislature was given power to make laws with respect to all matters enumerated in the Federal Legislative list. The Provincial Legislature, on the other hand, were given power to make laws with respect to any of the matters enumerated in the Provincial Legislative list. Under Section 102 of the 1935 Act—the main Act—where the Governor General has declared by proclamation that a grave emergency exists whereby the security of India is threatened, whether by war or otherwise, the Federal Legislature is empowered to make laws for defence in respect of any of the matters enumerated in the Provincial Legislative list. In September, 1939, the Federal Legislature passed the Defence of India Act. Section 2 of that Act authorises the making of rules covering inter alia the requisition of any property movable or irremovable.
It is in respect of the Defence of India Rule 75, which provided for such requisition, which has given rise to the litigation to which I have referred. In this litigation it has been contended that inasmuch as there is no entry in any of the legislative lists— that is the Provincial or Central Legislative lists—dealing by name with the requisition of movable property, any legislation directed to that end is, therefore, inappropriate. That contention was in fact repelled by the Madras and Calcutta High Courts, but was accepted by the Bombay High Court. Appeals to the 1217 Federal Court are pending from both the Calcutta and Bombay judications, and no successful decisions there can be said yet to have been reached. It should be emphasised that these cases have not been brought because of the absence of provision for the payment of compensation for the property which has been requisitioned, as such provision is included in the Defence of India Rules, and compensation has been paid for what was taken.
The calling into question of the validity of the Government of India Emergency Powers is regarded seriously because it may conceivably be directed against other powers exercised under the Defence of India Rule, even though the present appeal to the Federal Court should fail. The Government of India are very anxious that steps should be taken, irrespective of the eventual decision of the Federal Court, to safeguard the general Emergency Powers from this form of challenge, by removing any doubt that there may be as to the validity of other emergency powers; and that is what this Bill proceeds to do. In other words, the main object of the Bill is to give the Governor-General the power to make the rules which everyone supposed he had the power to make, and upon which the Federal Court has not so far adjudicated. I should like to be quite frank with the House, and say that I am fully aware that retrospective legislation does not find favour with the House, nor do T favour it myself. It is undoubtedly something which we have to avoid so far as possible, but cases do occasionally arise where it is essential and unavoidable that retrospective legislation should be carried. It is on this basis that I ask the House to give the Bill a Second Reading.
There is one other matter, which relates to Clause 2 of the Bill, on which I should like to say a word. It is considered that everything possible should be done to remove any hardship which might fall upon a litigant who had won his case in the High Court and who had been deprived of the opportunity of upholding the decision that he had obtained. Therefore, Clause 2 endeavours, firstly, so far as possible, to put him right in so? As costs of the legal proceedings are concerned, and, secondly, in so far as he may have sustained any loss due to his having assumed that decision would be upheld, when, in fact, it would 1218 be overruled as a result of the passing of this Bill.
§ 8.29 p.m.
§ Mr. Pritt (Hammersmith, North)
I am sorry to appear to quarrel with the hon. and learned Gentleman, for whom I have the greatest and most sincere affection, but I feel profoundly anxious about this Bill from a good many points of view. It has been my fortune or misfortune to have had to understand a good deal about the Indian Constitution, and I find a good many things that worry me about this Bill, and about the wide scope of it. The Under-Secretary tells us that there are three decisions of which one or two cause some anxiety to the Government of India. If I saw in this Bill a provision to alter the law so as to cover these two decisions, and nothing else, I would not seriously worry. But I find in this Bill an immense width of provisions, and 1 bear in mind in examining the width of those provisions, if I can recollect merely from the cases I have been in myself— and I have not by any means been in all of them— that there are scores of rules and enactments of various kinds in British India that have been held invalid and subsequently re-enacted in different forms. There are literally thousands of people who have been unlawfully imprisoned in India for long periods without trial, as a result of those illegal enactments. As soon as those enactments have been held to be illegal, further and better drawn enactments have been passed, which have been held to be legal, to cover up their tracks and keep their citizens in prison, or perhaps I should call it detention.
When one turns to the Bill and finds that instead of it being an innocuous Bill to put right three cases, the effect is that on the proclamation of an emergency— and there generally are proclamations of emergency—the powers to legislate for Provinces are transferred to the Central Legislature, which means the Indian Legislature; and in fact they are then often enough transferred to the Governor-General, and the functions of legislation are largely performed by the Viceroy and Governor-General. One finds that he is given, by the Constitution Act as it stands, all the rights of Provincial legislation. This Bill seeks to give him a large number of rights of legislation which have not previously been his at all. I daresay we would not be very alarmed 1219 about that because we have to be tolerant and broadminded about the difficult tasks of government nowadays. But there have been many cases in which powers have been widened retrospectively like this without going on to enact such provisions as are to be found subsequently in this Bill. Look at Clause 2. The first Subsection says:Subject to the provisions of this Section, this Act shall be deemed to have come into operation on the commencement of Part III of the Government of India Act, 1935.''That is to say, this alteration in powers, which is intended to become law in 1945, or early in 1946, will date back— the Under-Secretary will correct me if I am wrong— to 1st April, 1937. So it will have to be pretended in all further litigation and legislation that the law has been different from what it has in fact appeared to be for nine years. That need not necessarily worry us. It will not worry the layman, because he doesn't worry about the law until it hits him, and it will not worry lawyers because they understand that this sort of thing is often necessary.
It is when we come to Clause 2 (2) that I really am worried, because in all the odd legislation I have ever seen in this country, the Dominions and the Colonies, in the trouble us times in dealing with Ireland, and in many other cases, I doubt whether I have seen anything of this sort. I am prepared to accept almost anything new. Indeed, I give up most of my political time in helping to fight for something new, but when I see something new of this kind I want some explanation. The Under-Secretary, like his chief in another place, really has not given an explanation at all. Look at what the Subsection says:Where, before the passing of this Act, a High Court in British India has given a judgment or made a final order in any proceedings involving a question as to the validity of any law, ordinance, order, byelaw, rule, or regulation passed or made in India, any party to the proceedings may,at any time within 90 days from the passing of this Act, apply" —in some cases to the Federal Court and in other cases to the High Court—for a review of the proceedings in the light of the provisions of this Act, and the Court to which the application is made shall review the proceedings accordingly and make such order, if any, varying or reversing the judgment or order previously given or made, as may be necessary to give effect to the provisions of this Act:1220 Let me translate that if I can, if I can make my somewhat unhappy voice heard, into simple English and apply it to the case to which, when I read the Bill, and before I heard the Under-Secretary's explanation or read the explanation in another place, I thought it was meant to apply, and to which I know as a matter of English it can apply. Suppose that before the passing of this Act, say, any time from 1937, or more likely from 1939, until today a High Court in British India has given judgment saying that some regulation is invalid, and as a result of that one of my fellow citizens in India has been released from detention. This Bill becomes an Act and makes valid the regulation, whereupon within 90 days "a party to the proceedings," namely, officials of the King-Emperor, can go to the court which dealt with the released person in question, and say, "Reverse the judgment in the light of what we have enacted to be the law, and put the man back in prison."
If the Under-Secretary says that this Bill is not intended to do anything of the sort, I would say that of all the Governments we are asked from time to time to trust, the one which I trust with the least good will is the Government of India. I do not trust the Government of India when I find a Bill that would enable them to do almost anything and then say that the only purpose they will use it for is the three cases of civil proceeding mentioned by the Under-Secretary. If that is all they want to do the Government should take this Bill away and bring before the House a new one that does that, and nothing more. That is only one illustration of many. The general proposition that will appeal to most of us is that when there has been litigation, and it has been carried through to the end, and has been decided in favour of one party or the other, when someone has a specific right to get his damages, or is cleared of the burden of paying damages, or when he gets his freedom, or does not, it should not be possible nine years afterwards to go back to the court, rip up the whole proceeding sand have an entirely different judgment delivered.
I am prepared to assent to anything if I am shown that it is in what I believe to be the real interests of my country, but I am not prepared to assent to a thing like that, unless the Under-Secre- 1221 tary or whoever is to reply tells us why it is really necessary. If it is desired to make valid some regulations which have been previously declared invalid, then do that, but why rip up, say, three cases? There may be 30,000 cases for all I know. As a matter of interest, today and tomorrow I am engaged in the task of trying to discover whether a particular piece of legislation in British India — entirely non-political of course, or I should not have mentioned it here— is valid or not. That involves 100,000 cases. This may easily do so. Whatever the number is, is it not sufficient to get the regulations made valid? Why rip up previous proceedings and take away from someone the judgment they have got. Again I am quite prepared— very little shocks me— to be told that there is some good reason, but at the moment I know of none.
Then we are asked to look at the proviso to Clause 2. It is the only part of Clause 2 that the Under-Secretary really mentioned, showing what the Government are prepared to do. I think his words were that they were particularly anxious to remove hardship from litigants. The best way to remove hardship from a litigant who has won his suit is to leave it alone. The Government do not want to do that, they want to take his judgment away, and so they put a proviso in the Bill that on any such application, that is to say when application is made to the court, in effect, to rip up the judgment, and make it conform to what is now enacted to be the law, the courtmay make such order as to the costs of the application and of the proceedings as may be just.I assume that the court will say to the litigant "You won your case in 1942, and you have been brought up in 1946 to lose it. We will give you your costs on the application and the proceedings." He is not so far any better off than he would be if they had left him alone. Then "where they vary or reverse the original judgment or order," he court "may order "— which means that they will not do it unless they want to— that the person adversely affected by the variation or reversal shall be paidsuch compensation as may be just for any loss sustained by him,not by the judgment, not restoring to him his judgment— 1222which is attributable to anything reasonably done by him in reliance on the original judgment or order.To give a simple illustration, suppose they take away his motor car and he brings an action against them because their Regulation was invalid and recovers the value of his motor car, or the car itself. It might be thought sufficient to leave the man with his motor car. Oh, no, no. You must first reverse the judgment which took his motor car away from him, you take away from him the compensation recovered in the action, and generously award him his costs, and then give him "such compensation as may be just for any loss sustained by him in any action he took in reliance on the order." If he relied on the judgment of the Indian court that the car was his and he should have it, and he subsequently bought a new carburettor for it, you generously give him the cost of the new carburetter.
We are being asked to assent to this at an anxious time in the history of British India, at the instance of a Government in British India which does not command the universal confidence of all of us, and so I ask that we shall be given some really good reason why we should assent to this astonishing legislative provision. The only other thing I should like to ask is. Why are we to legislate here about this at all? It seems to me that the Constitution Act gave the Government of India ample power to deal with the whole problem. Sometimes I wish I had been in the House when that Bill was going through, not because I would have approved of it, but because I could have learned something about drafting. However, it is not too late. If the ordinary lawyer looked at this Bill he would at first sight think that this question should come to the Legislature here in Westminster, because it was Westminster that gave all these powers, it was Westminster that laid down the Schedule and enacted Section 102, and so if it is necessary to widen it this must come to Westminster. But when I look at what Westminster did I find it says in Section 104:The Governor-Genera] may by public notification empower … the Federal Legislature to enact a law with respect to any matter not enumerated in any of the lists in the Seventh Schedule to this Act.I look back at the Bill, and I find that the Federal Legislature is being given power to legislate 1223with respect to any matter not enumerated in any of the Lists in the Seventh Schedule to this Act.Again I am quite prepared to have it explained to me, but it looks as if the whole of this legislation, good or bad, could be enacted by the Governor-General by public notification under the powers contained in Section 104 of the Act. It may be that they want to throw the odium on Westminster rather than on Delhi. In that case I must not say "Return the buck" but "Let us refuse the odium." Unless and until I receive an explanation which I can understand, I shall regard this as a bad Bill which this House ought not to pass.
§ 8.47 p.m.
§ Mr. Clement Davies (Montgomery)
I, too, feel that this is a bad Bill, and to my mind both the Secretary of State in another place and the Under-Secretary here have treated this matter a little too lightly. The Bill has come to us from another place, where it was dealt with in a few moments, and I think the Under-Secretary has rather glided over matters as if there was no very great point involved; but there is. I have never seen a Bill of this kind referring to this country drawn up in this form. The Under-Secretary has said that the Government were proceeding on the line of retrospective legislation, sort of half apologising, but we are now asked to legislate and pass a Bill in 1945 and to say that it shall have exactly the same effect as if it had been passed 10 years ago in 1935, and the Government are obviously taking far more powers than they need under this Bill. As the Under-Secretary rightly said, one does not like retrospective legislation at any time, because the effect of it is to make illegal what it was perfectly legal for a man to do at the time he did it and he is to be punished today for doing it though it was perfectly legal at that time. We do not like that kind of thing unless, to repeat the words used by the Secretary of State in another place, there is some extraordinary and special reason for it. I cannot see any extraordinary and special reason for going back so much further than there is any necessity to do.
This matter arose as the hon. and learned Member for North Hammersmith (Mr. Pritt) said, because of bad drafting in the original Act of 1935. Under that Act we gave to India the Constitution under 1224 which she now operates, and we divided the powers between the central legislative authority and the provincial legislative authorities. Ordinarily when that is done, in case you have not provided for everything in your two separate Legislatures, you decide where the residue of the power is to reside. In the case of the United States of America the residue is in the individual States. What happened under this Act was that instead of deciding there and then, it was said, "If there is anything that we have forgotten, any residue, then the Governor-General shall have power to decided whether it shall go on the one hand to the central authority or, on the other hand, to the provincial authorities. "No question having arisen calling for any decision in that way, we come down to 1939.
In 1939the Governor-General exercised a power that had been given to him by the Act of declaring a state of emergency as having occurred. Thereupon he proceeds to issue what are called in this country Orders in Council. For a while nobody seems to have cared; they were accepted under a state of emergency. Then individuals began to challenge them and the Under-Secretary has told us that three cases have come before the High Courts, one in Madras, one in Calcutta and one in Bombay. In the first two cases the judges in India decided that the Orders made by the Governor-General were valid, but in Bombay the Court came to the conclusion that they were invalid and ultra vires. Thereupon, in one case the Government appealed, and in the others the subjects appealed. Along comes the India Office and proposes this hurried legislation. All that was mentioned in another place, and the only thing the Under-Secretary has mentioned today, was that something had arisen under one Order relating to moveable property. If that be the only Order troubling them and the state of emergency having now ended, why do not they come and ask for this narrow matter to be dealt with and ask the House to deal with that and that alone? Instead, they come and ask for the widest possible words, as the hon. and learned Gentleman the Member for North Hammersmith read out. They are:Any question involving the validity of any law, any ordinance, any order, any law, any rule, or any regulation passed or made in India.1225 Those words cover every kind of Act that can be thought of, relating not only to property but, possibly, to the actual persons themselves. Might I impress upon the Under-Secretary of State, following upon my hon. and learned Friend, that they are taking powers to call again upon people who have been released from prison to go back. It is no good the Under-Secretary shaking his head. [An Hon. Member: "It does not say that at all."] I will repeat what I have already read to hon. Members. The proceedings are of the widest sort, both civil and criminal. There is no adjective limiting them. Proceedings Underany law, any ordinance, any order, any bylaw, any rule or any regulation.It is no good the hon. Gentleman telling us it is not so. What right has he to make any pledge on anybody's behalf? This is the Constitution of India over which he will have no control whatsoever, and I submit there are wider powers being asked for here than this House has ever granted under conditions of this kind. Whenever anybody has made a mistake and an Order made in Privy Council turns out to be ultra vires and invalid, all that happens is that they come down to the Legislature and ask it to put it right, and, possibly, to put it right in retrospect as from the date it was first made, but they will not ask for more. Then an indemnity is granted, but here, as my hon. and learned Friend pointed out, the original Order may have been invalid; somebody may have taken the trouble to challenge it, and gone to great cost in challenging it. That person's property has been taken.
The hon. Gentleman says he has been given compensation. Compensation may be a certain consolation, but it is not the same thing as the original property itself. The court in Bombay said it was wrong, that those goods ought to be handed back, and that the Government ought to pay the costs. But, as my hon. and learned Friend knows from his past practice, costs that are given in court are never indemnified, not even if they are made as between solicitor and client. The man is out of pocket. Now, having won his case, the Government will bring him before the court again and say that in the light of this new Act of Parliament passed at Westminster they are asking the court to review the case and make a new Order, as may seem to be just and fair.
1226 Is that the kind of thing we ought to assent to today? Either, as my hon. and learned Friend has said, this hurried bit of legislation should be withdrawn—it seems to me, again, to have been inherited by this Government—and another more limited Bill brought in dealing only with the point the Government want to deal with. Or, if they do not want to do that, will they limit it in commitment by a definite Clause which will make it absolutely certain that it can go no further than the point at issue? Under no circumstances should there be any review with regard to the personal liberty of anybody so that a person can be quite sure that something which we do in 1945 shall not put him back into prison for something he did prior to 1945. Let us, at any rate, have that perfectly clear. I beg the Government to be more careful about this type of Bill, which might well slip through unless somebody keeps an eye on it.
§ 8.57 p.m.
§ Mr. R. A. Butler (Saffron Walden)
The first observation I should like to make to the House this evening is that this is the second time the India Office have brought down to the House of Commons a Bill to put right some gross error in the courts of British India. On the last occasion we had a divorce Bill, and my hon. Friend the Under-Secretary was obliged to come down and explain that owing to some glaring error owing to the inability of the High Courts of India to read the notice of a passage elsewhere, there was confusion in the divorce law of India. I was very sympathetic with the hon. Gentleman when he came here to ask the Imperial Legislature to take the time of both Houses to pass an Act of Indemnity because a mistake had been made in India. I think it damaging to the Government to have to come again, on a second occasion, and introduce a Bill to put right errors committed in India. I extend my sympathy to the hon. Gentleman for having to come here a second time and trouble Parliament in both Houses in this connection. I would say this time—and I uttered eloquently on the last occasion which was critical of the Government—that we have had enough of this sort of thing in Parliament and that the time had come when we should say that those who administer the law in India should do it in the right way. I must confess that the terms of the original 1227 Act, with which I had something to do in 1935, may be at fault. I would not accept the view of the hon. and learned Member who has spoken that this is a damnosa hereditas from the last Government, but it may be a damnosa hereditas from the Act of 1935. If that be the case, I can only say that the hon. and learned Gentleman the Under-Secretary for India must look into it very closely and, with the help of those of us who have had to deal with the operation of the law in India, put it right.
The hon. and learned Member for North Hammersmith (Mr. Pritt) has put forward some very definite and damaging arguments which affect the Bill as we see it before us today. As I understand the position, it is that there are no actual items onthe legislative list which cover the action of the authorities in India in requisitioning certain properties. As that is the case, it is necessary to come before Parliament for an amendment of the original Government of India Act in view of the relationship of the original Government of India Act to the Defence of India Act itself. The only learning I can add to that of the hon. and learned Member for North Hammersmith is that we must read this not only in the light of the Government of India Act of 1935,but of the Defence of India Act, and the fact that this is dealing with an emergency.
The first question I would like to ask the hon. and learned Gentleman the Under-Secretary—and on this point depends our attitude on this side of the House to the Bill—is: are any powers envisaged under this Bill, either retroactively or in the future, greater than the powers used in this country under the emergency provisions generally? If we find that this is to deal with normal cases under emergency powers, we will be - somewhat concerned. I would like the hon. and learned Gentleman to answer that point clearly, so that we know the scope of this Measure, and I would like him to answer the anxiety raised by the hon. and learned Member for North Hammersmith and other hon. Members as to whether this Act is intended to deal with prisoners, civilian cases, and, if not, I fail to see how the language on the face of the draft Bill would reassure us on this side of the House. I am not a lawyer and, therefore, appeal to the hon. and 1228 Learned Gentleman to assure me on that point. If he will reassure us in these two respects, we do, at any rate, get a certain distance.
The hon. and learned Member for North Hammersmith, without whose co-operation we were unfortunately obliged to pass the 1935 Act, but with whose help the Statute would have had more eloquence and even greater precision, has drawn attention to Section 104 of the original Act of 1935, and he suggests that it can be done as residual powers of legislation, where by the Governor-General would be able, in his view, to alter the items' on the legislative list. I remember that that Section was inserted on purpose to deal with cases of obscurity in the field of the legislative list as it lay between the projected legislative Legislature and the Provincial Legislature. I was for a moment deluded by the legal observations of the hon. and learned Gentleman, but as I read the Section it is the case that if the Governor-General were to make a decision in his discretion in this field, he would not be able to alter his notification and, therefore, once and for all the subject he designated as being an item in the Provincial list, for instance, would remain forever in the Provincial list. That is not the desire of the Government in this case.
§ Mr. C. Davies
Surely the difficulty under Section 104 is that the Governor-General cannot act retrospectively.
§ Mr. Butler
Perhaps if the hon. and learned Member for Montgomery (Mr. C. Davies) allowed me to conclude my legal discussion, he would see that I come to that as my second point. The fact that as a lawyer he adds a second point to my first does not invalidate my first point. I was about to add, with the aid of my hon. and learned Friend, whose aid I will always call in future in these difficult problems, that in Section 104 the Government do not mean retroactively. There are two difficulties in relying exclusively on Section 104. It would be necessary to pass some resolution to put right the action of the authorities in India who have requisitioned property under the Emergency Regulation. If that be the case, so far, part of the case of the hon. and learned Gentleman the Member for North Hammersmith is demolished and I do not think that he can call in aid 1229 Section 104. It is necessary to have some legislation of some sort for the two reasons that I have given. I ask the Government to give an answer as to the scope of the legislation. If the proposed legislation is so wide as to bring in civil and human cases, I consider that the legislation is drawn far too wide for the House to consider and pass this evening. If the hon. and learned Gentleman can give an assurance on these points, we would be happy to examine the legislation in Committee.
I come to Subsection (2), which is drawn in exceedingly wide terms, as has been stated by the hon. and learned Gentleman the Leader of the Liberal Party, and by the hon. and learned Gentleman the Member for North Hammersmith. The terms of Subsection (2) seem to give an opportunity to range over a vast range of proceedings in the past. It is incumbent upon the Under-Secretary to tell us in what way this wide ranging is in the least degree limited? It is somewhat disturbing, looking at the Proviso, to consider the words "the variation or reversal of such compensation." If the measure, when it is finally passed is to apply to three cases under the High Court we have a certain satisfaction in knowing that legislation is limited, but if we read, together with the proviso, the wide ranging words about proceedings involving the question as to validity of any law we are opening up a field so vast, and, if it is not limited by civil cases, so obnoxious, that I do not think that the House ought to pass the Measure without further satisfaction.
I put this question to the hon. and learned Gentleman. If he can answer satisfactorily then I would permit this Bill to go to a discussion in Committee but I must reserve the right of hon. and right hon. Gentlemen on this side of the House to examine the Bill most carefully in Committee. Little Bills rushed through are not necessarily good legislation. It is incumbent upon us on this side of the House, together with the unusual aid that we can seek from other quarters, to make sure that the legislation passed by this ancient and honourable House is satisfactory. Our attitude depends on the answers as to the scope of the legislation given by the hon. and learned Gentleman himself.
§ 9.8 p.m
§ Mr. Solley (Thurrock)
Like the hon. and learned Member for North Hammer- 1230 smith (Mr. Pritt) and the hon. and learned Member for Montgomery (Mr. C. Davies) I view this Bill with the gravest apprehension. Bearing in mind that it comes from a Socialist Government, I should say that it is a doubly bad Bill. During the course of the speech of the hon. and learned Member for Montgomery there was interruption from the Opposition benches to the effect that Clause 2 of the Bill had only reference to civil matters and not to criminal matters. That is not so and I propose to give the House two examples to show that if we pass this Bill as it stands we shall in fact be sentencing hundreds if not thousands of our Indian friends to terms of imprisonment. I propose to prove my point be reference to a specific case which went to the Privy Council. In the case of The King-Emperor v. Sibnath Banerji and Others, some eight Indians were detained under one of the many regulations made by the autocratic Government of India, and, very properly in the circumstances of that case, these Indian subjects applied to the High Court at Fort William for a writ of habeas corpus. It was argued during the course of the proceedings that the alleged law under which they had been detained was ultra vires the power of the authorities who had made that law, and that consequently the detention was illegal. That High Court ordered that those Indians should be released. Happily, from the point of view of the British authorities in India, those Indians were immediately seized and arrested on some other charge. The fact remains that if this Bill goes through as it is today, those Indians who were declared by the Divisional Bench of the High Court of Judicature to have been illegally detained, could again be detained and be sent back to prison. That is one example of proceedings by way of habeas corpus where the appropriate court could grant an order of review.
Let me take another type of proceeding. Let us suppose—and there must be at least hundreds of such cases—an Indian is sentenced in India for some alleged criminal offence. He appeals against his sentence, the ground of his appeal being that the law under which he was convicted was ultra vires, and the appellate court upholds that decision. The man is consequently released. What will happen if this Bill becomes operative? If the law is validated, the man who was re- 1231 leased by the appellate court must go back to prison. That is what we are being asked to do today by a Socialist Government, and I would add my voice to those of the right hon. Gentleman and hon. and learned Gentleman opposite who have spoken, and say that if it is in fact the intention of the Government that this Bill should apply exclusively to the three cases referred to by the Under-Secretary of State, then there is absolutely no necessity whatsoever for Clause 2 of this Bill to be worded in this way. The argument does not stop there. The proviso of that Clause does not, in fact, give any compensation to a gentleman who is sent back to gaol through no fault of his own. It only provides a very limited compensation for certain persons who, in certain very special classes of cases, have acted on the assumption that they are lawfully entitled to follow a certain course of conduct. It does not, in my submission, apply to any case of a criminal or quasi criminal type.
Finally, I would like to address myself to Clause I We are being asked, in a matter of an hour or two, to make what is, in my submission, substantial constitutional changes in respect of the Government of India. What we are being asked in Clause I of this Bill is to alter the centre of gravity of the legislative councils in India. We are giving the federal legislature which, as was pointed out by my hon. and learned Friend the Member for North Hammersmith, is often merely a nom de plume for the Viceroy, legislative rights which, at the moment, it does not possess, and, accordingly, to take away from the provincial legislatures rights which at the present moment they possess.
All I can say to that politically is that it may well be that the Indian Government have in mind the prospect of elections in the near future and that the new Provincial Legislatures possibly may have a political colour which does not appear to be proper to the Powers That Be; and therefore they are thinking, in the year 1945, of getting emergency powers whereby they can take away from democratically elected Provincial Legislatures certain powers of legislation which those bodies possess, so that in effect, the will of the Indian people can once again be circumscribed by autocratic and dictatorial emergency legislation. For those reasons and for reasons which have 1232 already been given, I am not prepared to support the Government on the Bill unless I have a complete assurance that the Bill will correspond to what one would expect from a Socialist Government.
§ 9.16 p.m.
§ Mr. Godfrey Nicholson (Farnham)
There must indeed be something wrong with this Bill if it can produce speeches of the sort to which we have just listened. I interrupted the hon. and learned Member for Montgomery (Mr. C. Davies) to say that the Bill applied only to civil cases. The object of the Bill is perfectly clear. When Provincial Legislatures fail to function, certain powers are taken over by the Central Legislature of the Central Indian Government, under Section 93, and it has been found that the resumed powers, as one might say, in some cases are not completely comprehensive. Certain subjects have emerged into the light of day which are not included among the provincial powers enumerated in the Seventh Schedule. I said that it covered only civil cases because all possible criminal cases are already covered in the Schedule. As I see it, the sole purpose of the Bill is to say, in legal jargon, that if by any chance there are odd subjects which have been left out, or were left out in 1935, it shall be proper that Ordinances be issued in respect of them. Under Section 104, of course, there is a residual power of legislation left, but that power does not apply when the Provinces have been administered under Section 93.
§ Mr. Pritt
Perhaps the hon. Member will allow me to interrupt him to say that I think he is wrong in his reference to Section 93. It is not a case of failure to exercise powers under Section 93. It is Section 102 which applies when an emergency has been declared and the powers of a provincial legislature have been taken over by the central legislature. It may not invalidate the argument, but that is the position.
§ Mr. Nicholson
I am sure that the hon. and learned Member must be right, but I do not think that fact invalidates my argument. As I see the purpose of the Bill, it seems to stop up any possible gaps that can be. They would be gaps only of a relatively minor nature. I still maintain that it would be physically impossible for the Bill to cover any but civil cases, because everything has been covered in 1233 the Seventh Schedule. I hope that the India Office will not adopt such very comprehensive phraseology. Further, I admit that unless one studies the India Act very carefully, it is very alarming phraseology. It rather reminds me of the medieval scholastic philospher who wrote a book entitled "De omnibus rebus, et quibus dem aliis," in other words, "About everything and a few other things." It looks to me as though this legislation is framed somewhat on those lines. I hope the purpose of the Bill can be explained in simple language. It gives the Governor-General power to issue Regulations in the case of some purely drafting slip or omission in the Seventh Schedule to the Act.
§ 9.20 p.m.
§ Mr. Sydney Silverman (Nelson and Colne)
I am not competent to judge whether this Bill could have all the effects attributed to it by my hon. Friend, but it seems quite clear from a very casual reading of the words that it gives the Government of India powers far wider than would appear to be necessary to cover the very narrow object for which my hon. and learned Friend said he wanted the Bill. It seems as if there is a gulf fixed between the purposes of the Government and the achievement of the Bill, and the part of it that worries me most is what seems to me to be the great power of the Government of India to give retro-active effect to criminal legislation, so as to involve people in criminal sanctions and penalties for doing things which, it is clear from the fact that this Bill is before the House, it was perfectly legal for them to do. It is a very bad thing for any sovereign legislative assembly to legislate in that fashion for its own subjects here at home, who some day will have the right to say something about it when a General Election comes, but it must obviously be very much worse to do it in this House for millions of people in India who are subjected to an administration which is not responsible to this House at all, and in circumstances which would render it impossible for this House to keep any effective control. I do not want to add anything to the embarrassment which I am sure my hon. Friend feels. This is not his fault. Neither the circumstances, nor the fact that he has to come before the House and ask for these powers, are his fault, and I am sure he is getting, and certainly deserves, the sympathy of the 1234 House for the predicament in which he finds himself.
All I want to ask him to do is to undertake, before Committee stage, to look very carefully at the actual words of the Clause, and see whether they do not indeed give the Government of India far wider powers than are necessary to meet the position which has arisen, and particularly on that side of the matter which might involve criminal proceedings or penalties. I suppose the introduction of the word "civil" in Clause 2, before the word "proceedings," would go a long way to ease some of our anxieties, but whether that kind of Amendment or some other would be better, I am perfectly content to accept his advice when the time comes, provided that he will at this stage give us the assurance that it is not intended that these powers which are retroactive will affect anything but civil proceedings.
§ 9.24 p.m.
§ Mr. Sorensen (Leyton, West)
It is very rarely that I look to the Conservative benches for inspiration, but tonight I must confess that I do, for the simple reason that every speaker from the Liberal and Labour benches has been a lawyer. I am not a lawyer, and the only two speakers on the Conservative benches are not lawyers. But for them I should have been so impressed by the forensic skill of the other speakers that I would have remained dumb. I do not intend to speak for more than a few moments, because the point I have in mind has already been well covered by my legal friends and by my opponents. Even though this Bill, possibly, had an entirely innocent intention—and I am quite sure that my hon. and learned Friend the Under-Secretary of State for India is a man above guile and hardly likely to foster the enactment of legislation with an ulterior motive—I must confess that my hon. and legal Friend who spoke earlier, did point out that it is sometimes possible that people most innocent in appearance, have a sinister motive. I do not suggest that there has been any sinister motive in this legislation, but as a layman I think that a good many of the terms of this Bill are capable of a much wider interpretation than the relatively innocent application to which the hon. Gentleman referred earlier.
1235 It may be that I am wrong in my interpretation, but it seems to me that one possible effect of the passing of this Bill may be still further to strengthen the Central Legislature of India against the Provincial Legislatures. That may seem to be quite attractive to the democratic minds of the House, until one realises that the strengthening of the Central Legislature is really the strengthening of the powers of the Governor-General, because under the Government of India Act he has power to repeal any Act made by the Assembly of India. In those circumstances it would be well, I think, for the hon. and learned Gentleman the Under-Secretary of State to consider very carefully whether, without his really understanding or knowing it, he is not bringing in a Bill the effect of which will be substantially to increase the autocratic power of the Governor-General.
Reference has been made more than once to the undoubted fact that under the provisions of Clause 2 it will be possible to get the courts to return to prison persons acquitted by the courts, even if they have been acquitted years before the passing of this Bill. That is only one aspect of the matter. The other aspect is perhaps the more dramatic, or even melodramatic aspect to which the hon. Member for Thurrock (Mr. Solley) referred. I do not know whether all that we are discussing today comes under the general heading of the India (Proclamations of Emergency) Bill, or whether in fact there are behind the scenes those who envisage a much greater emergency than this Bill desires to cover. I would simply observe that it is a little unfortunate, on the eve of the departure of a deputation to India, to come forward with a Bill the actual effect of which is not to decrease the amount of emergency legislation, and not to extend the amount of freedom, but on the contrary rather to contract it. I ask the hon. and learned Gentleman, who expounded the Bill in all innocence and integrity, to' think again, and to see whether he cannot withdraw the Bill, or give some complete assurance that what he thinks is in the Bill is really covered by it. If he is not assured of that in his own mind, I beg him to withdraw the Bill and think again.
§ 9.28 p.m.
§ Mr. Mikardo (Reading)
As I also am a layman, I intervene in this Debate with some diffidence, but one does not need to be a lawyer to understand two things about the Bill. The first is that when hon. Members consider legislation, they ought to consider, not what the Minister says he wants to do under the legislation, but what it is possible for him or his successors ever to do under the legislation. The second thing is that it is always dangerous to go in for retroactive legislation, which apparently my hon. and learned Friend wants to call retrospective legislation. Because everyone appears to appreciate the danger of retroactive legislation, the proviso at the end of Clause 2 is inserted. As a layman I want to ask one simple question. What precisely is meant by the expression:Such compensation as may be just for any loss sustainedif the person adversely affected has sustained something adverse which cannot be measured in pecuniary terms? If I were the victim of a prosecution, I should consider myself adversely affected by the very fact of having been brought into court, but no compensation is envisaged for this loss of face, or embarrassment, or humiliation. Or, to take a further example, if someone had been put in prison, and had lost only the few pounds a week of his wages, is he to be compensated merely for loss of earnings, or does he get any other compensation for having been detained? It seems to me that this proviso is insufficient to act as a complete safeguard against the dangers of retroactive legislation.
§ 9.30 p.m.
§ Mr. A. Henderson
With the leave of the House, Mr. Speaker, perhaps I may speak a second time. I appreciate very much some of the kind remarks that have been made by various speakers. One of my hon. Friends suggested that I had come down to the House, in all innocence, to put forward a Bill which I did not understand, and which would have appalling consequences if it became law. I would like, at once, to remove one misunderstanding which seems to be held, especially on this side of the House. and which followed the weighty attack by my hon. and learned Friend the Member for North Hammersmith (Mr. Pritt) on the provisions of the Bill. Let 1237 me say at once, that this Bill does not, in any way, affect the liberty of any individual in India today. Let me explain the provisions.
Clause I seeks to insert certain words in Section 102 of the 1935 Act. Perhaps I might quote that Section:(1) Notwithstanding anything in the preceding sections of this -chapter, the Federal Legislature shall, if the Governor-General has in his discretion declared by Proclamation (in this Act referred to as a Proclamation of Emergency) that a grave emergency exists whereby the security of India is threatened, whether by war or internal disturbance, have power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial legislative list:If we-turn to the Seventh Schedule to the Act, we see there enumerated the various items that comprise the Provincial Legislative List and the matters which are within the province of that Legislature. During the emergency period, the central Legislature is given power to legislate for any of the matters contained in that Provincial legislative list. As I said in my first speech, the Government in 1939 passed the Defence of India Act, which contained a provision that rules, similar to our Defence of the Realm Regulations, should be issued, covering a multitude of matters that were of importance during the war period. That was five years ago. I may say, at this point, in reply to my right hon. Friend the Member for Saffron Walden (Mr R. A. Butler) who asked whether I could give an assurance that the Defence of India Regulations, as amended in the event of this Bill becoming law, are no more extensive than the Defence of the Realm Regulations in this country. At the moment, assuming that the judgment in the court of Bombay were to be upheld by the supreme court of appeal— the Privy Council—the Defence of India Regulations, would be less extensive than the Defence of the Realm Regulations in this country. As the hon. Member for Farnham (Mr. Nicholson) said, the intention of the Bill is to stop a loophole which, as a result of this litigation, has been found to exist in the Defence of India Regulations.
The effect of Clause I would be to give the central Legislature, as from 1937, retrospectively the same powers over these additional matters as they have 1238 today for matters enumerated in the Provincial legislative list, and I can assure my hon. and learned Friend that the first item on the Provincial legislative list relates to public order, and that any power that may be exercised today by the Government of India, in relation to imprisonment or detention or any other matter affecting the liberty of the subject, has been enjoyed by the Government of India ever since 1939, when the Proclamation of Emergency was first published. Therefore, so far as the question of the liberty of the subject is concerned, and in spite of the eloquence used by my hon. and learned Friend, I can assure him, and I can assure the House, that there is nothing in this Bill which in any way affects the liberty of the subject. I willingly say to my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) that I will have examined very closely Clause 2 of the Bill with a view to placing beyond all doubt the point to which he referred in that connection.
§ Mr. Solley
Before the hon. and learned Gentleman proceeds, may I say that while I accept his statement of the intention of the Government, the important point is to see that the intention of the Government is translated into appropriate language in this Bill? I submit that on the present wording of this Bill, every contention put before him by hon. and learned Members still stands.
§ Mr. A. Henderson
What I am endeavouring to do for the benefit of the House is to explain the matter to the best of my ability. The words arc quite plain; there is no ambiguity about them:to make laws, whether or not for a Province or any part thereof, with respect to any matter not enumerated in any of the Lists in the Seventh Schedule to this Act.Therefore there can be no ambiguity about what is contained now in the Seventh Schedule. They are in print, and my hon. Friend might take the trouble to look at the Seventh Schedule of the 1935 Act, when he will see for himself that the first item refers to public order.
§ Mr. Solley
I have taken that trouble. The point is that Clause 1 is not limited by Clause 2, nor is Clause 2 limited by Clause 1. Clause 2 stands by itself. Would my hon. and learned Friend deal with the contention raised under Clause 2 (2), that that Clause makes retroactive 1239 legislation possible, without any reference to any Schedule?
§ Mr. A. Henderson
I must confess that I can do only one thing at a time. At the moment, I am endeavouring to deal with Clause 1. I repeat that there can be no ambiguity about what is set forth in the Seventh Schedule itself as passed by this House. It is only with a very limited number of matters, not actually set out in the Provincial legislative list in the Seventh Schedule, that we are concerned in this Bill.
May I take a practical point? The question from the point of view of the Government of India is this. They have their Defence of India Rules which have been in operation for the last five years. They have operated them. In the case of requisitioning, just as in this country, they have had to use their requisitioning powers extensively. The issue that has arisen is the doubt that has been thrown upon the validity of those requisitoning powers, because of the suggestion that there was nothing in the Seventh Schedule which permitted or authorised the Government of India to exercise these requisitioning powers. Therefore, what this Bill seeks to do is to say that Section 102 has to be interpreted to include any matter that is not to-day, enumerated in the Seventh Schedule. That could mean that if anyone hereafter were to argue that the requisitioning powers of the Government of India were ultra vires, he would be ruled out of court, because the court would have to read Section 102, together with the amendment of the laws contained in this Clause I. My hon. Friend the Member for Thurrock (Mr. Solley) asked to deal with Clause 2. He said that there was no connection between the two Clauses; that one was independent of the other and that there were the widest powers contained in Clause 2. May I remind the House of what Clause 2 (2) provides:Where, before the passing of this Act, a High Court in British India has given a judgment or made a final order in any proceedings involving a question as to the validity of any law, ordnance, order, byelaw, rule or regulation passed or made in India, …Several hon. Members seem to stop there, and suggest that that would raise every conceivable order, regulation, ordinance and bylaw, that might have been issued or passed during the past five years. 1240 Should we not read a little further. We eventually come to the point where the question of the review of the proceedings is referred to—for a review of the proceedings in the light of the provisions of this Act,The "provisions of this Act" are those contained in Section 1 and, therefore, the ambit of the Bill is limited by these few words, which my hon. Friend appears to have overlooked in his anxiety to make an onslaught on this Bill. Whether we take Clauses 1 and 2 separately, or together, it is clear beyond doubt, that the object of this Bill is not to extend the powers of the Government of India, but merely to give protection as regards the Defence of India Rules, which are, today, in operation, and which, we hope, will come to an end in a few months, because the emergency period will obviously now be coming to an end, since the defeat of the Japanese.
I ask the House to look at this Bill in relation to the explanation which I have given, and which I hope has convinced the House. In conclusion, in view of the representations of both my hon. Friends and of any idea that may exist—and perhaps with reason from their point of view —or which may exist in the minds of any other Members, I would assure them that ' there is no intention to alter the constitutional basis of India in the next few days. The Committee stage of this Bill will not be taken until after the Recess. We shall have a considerable period in which to think over and digest what has been said in this Debate. I hope that, when we come to the Committee stage, I shall if required be able to satisfy, more than I have tonight, the misgivings of any of my hon. Friends.
§ Mr. A. Henderson
If this Bill is passed it will nullify the verdict given in the Bombay case, which was to the effect that the Government of India had no power to requisition a motor car. As from April, 1937, we must read Section 102 in the light of the amendment of the law contained in Clause 1 of this Bill.
§ Mr. C. Davies
They cannot do that unless an application is made to the court to get the original decision annulled. My hon. and learned Friend is asking the Under-Secretary why he could not ask for the original document to be left out.
§ Mr. A. Henderson
In the event of this Bill becoming law, I think that it is a perfectly proper thing to provide that application should be made to the Court to revoke a judgment which, in view of the passing of this Measure, would be bad law.
§ Mr. Platts-Mills (Finsbury)
With regard to the proviso to Clause 2 as the result of which the court may, in certain circumstances, order the costs and compensation to be paid to someone aggrieved by the reversal of a judgment previously passed, it is not clear who is to pay the compensation or the costs. It would be an extraordinarily heavy burden on the successful litigant. There may have been a judgment nine years ago, as a result of which his opponent has carried on under some dispensation which he thought was valid. Is the then unsuccessful opponent — now successful—to have to pay compensation to his previously successful opponent because of the action taken by the High Court? It docs not seem at all clear.
§ Mr. A. Henderson
With great respect I should have thought it was quite clear. The proviso says:… in any such application, the Court may make such orders as to the costs of the application and of the proceedings as may be just…"That would mean, in the Bombay case, that it would be the legal representative of the Government of India or of the Provincial Government who would ask for the judgment against them to be reversed. It would mean that the previously successful litigant, whose judgment is reversed as a result of the passing of this Bill, would be entitled to receive his costs. Those costs would no doubt, have to be paid by the Provincial Government. As regards compensation, I am not in a position to give an example. I would say it is a question of fact. If the Bombay High Court reverses the decision, and if the Court comes to the conclusion that the litigant whose judgment is being reversed will suffer pecuniary loss as a result, they 1242 would, on the facts of the case, be entitled to award him a reasonable amount of compensation.
§ Bill accordingly read a Second time.
§ Bill committed to a Committee of the Whole House for Tuesday, 22nd January.— [Mr. Mathers.]