CLAUSE 8.—(Temporary provision as to government of each of the new Dominions.) (Hansard, 14 July 1947)

§ Mr. H. Macmillan
This Clause is rather difficult to follow, and I think that the Committee would be grateful if we could have a further explanation from the Attorney-General as to its precise effect.

§ The Attorney-General
This is an important Clause making provision in the main for the transitional period while the Constituent Assemblies are still working and before the Legislatures have had time to consider whether or to what extent they wish to modify the general law and government of the Dominions. In the meantime, law and government must he carried on, and the broad scheme of the Bill as expressed in this Clause and Clause 18 is to provide for a temporary Constitution and maintenace of the general law until such time as they may be altered. Subsection (1) gives the necessary legislative power to a Constituent Assembly and attracts the provisions of Clause 6. Subsection (2) deals with the constitutional position until and unless some other provision is made by the Constituent Assembly, and it provides, broadly speaking, that the Government of each of the Dominions is to be carried on as if the Government of India Act, 1935, was as nearly as may be applied to each of them separately. I say "as nearly as may be" because in practice the Act will require very considerable modification. The provisions of the Act which involve central control, directed from London, go.
Similarly, the provisions in the Act as to the precise constitution of the different legislative assemblies go. There are, on the other hand, a number of matters in which the 1935 Act may continue in operation unless and until the Constituent Assemblies 119 decide to alter them. In substance—I do not say in every detail because it would be impossible and I think not useful to attempt to go through every Section of the Act at this stage—the existing powers of the constitution of the Provincial Legislatures will remain in being, and so may the powers, as distinct from the constitution, of the Central Legislature. What I have in mind particularly there is that what are called the "legislative lists" set out in Schedule 7 of the 1935 Act, which allocate certain subjects as being for the Central Legislature and assign others to the Provincial ones, would continue until one or other of the Constituent Assemblies decides to alter them. So should also the provision with regard to the constitution and jurisdiction of the High Courts. This will go on and the courts will continue to function until a Constituent Assembly or Legislature decides to alter them. Some of the modifications and adaptations of the 1935 Act are obvious and some are not. The more obvious ones are the subject of express provision in Subsection (2) of the Clause, and, for the rest, the necessary modifications will be made by order of the Governor-General under the powers which are vested in the Governor-General under the subsequent Clauses of the Bill. That is the broad purpose of this Clause, and one has to read it in relation to the next Clause and in relation to Clause 18.

§ Mr. Molson
There are two or three questions which I would like the Attorney-General to answer He has said that the provisions of the 1935 Act will continue in force in so far as they are applicable to the new circumstances. He has mentioned a number of respects in which, owing to the partition of India and also the partition of the Provinces, a number of the provisions of the Act will cease to be applicable. There may be a difference of opinion as to what has ceased to apply. Is there any court through which application can be made in order to determine a question of that kind, or is it to be determined by some other machinery? The right hon. and learned Gentleman referred to the High Courts He did not say any thing about the Federal Court. Under the 1935 Act, the Federal Court was set up for three purposes, one of the most important being to define the Constitution. 120 That, I take it, will not continue to apply. Suppose there is a perfectly genuine doubt as to the extent to which some provision of the 1935 Act is by implication being made inapplicable as a result of changes that have taken place, how is it to be decided what the true view is?
8.0 p.m.
The other question I should like to ask is with regard to Subsection (2, d) which says: as from the appointed day, no Provincial Bill shall be reserved under the Government of India Act, 1935, for the signification of His Majesty's pleasure. and no Provincial Act shall be disallowed by His Majesty there under The real purpose of that provision under the Act of 1935 was to enable the Central Government to exercise a certain jurisdiction over the Provincial Legislature and, in particular, if I remember aright, to make certain there was not a conflict of jurisdiction between two adjoining Provinces. One recognises that under this new legislation, instead of His Majesty disallowing legislation on the advice of the Secretary of State for India, it would be done by the Governor-General. If paragraph (d) were not incorporated the natural development would be that the Government of India under the new Bill would be able to prevent a Provincial Legislature from legislating in a way which a Dominion Government disapproved, and the Minister of the Dominion Government would recommend the Governor-General to disallow that Bill. I do not understand why that rather important piece of machinery is being done away with under this Bill. It is true we are going to have two federations instead of one, but I should have thought that it was as important as ever to enable the Government of the Dominions to exercise some measure of control over the Provincial Legislatures.

§ The Attorney-General
I will deal with the two points raised by the hon. Member for The High Peak (Mr Molson) in the order in which he raised them the existing Federal Court cannot function in future but some corresponding court may arise under Clause 6 (2) unless the Dominion or Governor-General decides otherwise. That will be a matter for the Dominion concerned.

Mr.H. Maemillan
Under both Dominions?

§ The Attorney-General
Under the new constitution for both Dominions, but a Federal Court is established—.

§ Mr. Macmillan
For both?

§ The Attorney-General
—for each Dominion separately—the existing Federal Court established under the 1935 Act will not continue to function. The High Court will continue to operate in each Dominion until they have had an opportunity of deciding to what extent any particular provision of the 1935 Act in these regards should be altered.

§ Mr. Molson
I am much obliged to the right hon. and learned Gentleman for saying that the Federal Court will cease to exist. I do not think that that is actually provided for in this Bill.

§ The Attorney-General
No.

§ Mr. Molson
If the right hon. and learned Gentleman would permit me, I would like to develop this argument. He has made an extremely important statement, and it is an example of the way important changes are being made in the Constitution of India which are not explicit in the words of this enabling Act but are implicit because it is assumed that these provisions cease to be valid on the principle cessante ratione, cessat lex. If that is so, it is vitally important that from the beginning either a court or a tribunal or the Governor-General shall be able to decide what are the ultimate consequences of the provisions of this Bill.

§ The Attorney-General
I quite agree with the hon. Member, but the Governor-General has those powers under the succeeding Clause. He has an order-making right to make whatever adaptation he thinks necessary in the 1935 Act The existing Federal Court, of course, cannot function because the circumstances in respect of which it was functioning under the i935 Act will not continue New Federal Courts may be set up for each Dominion. As far as the High Court is concerned, I was saying that it might have occasion incidentally to consider whether any particular provisions of the 1935 Act are still in operation providing that the Governor-General had not already dealt with the matter by Order in Council, the normal way in which these matters will be dealt with and will be made clear, and those orders made by 122 the Governor-General will be made under the succeeding Clause.
The second point raised by the hon. Member was in regard to the provision in Clause 8 (2, d) as to reservation. That corresponds in the case of the Provincial Legislature with the provisions under Clause 6 (3) with regard to the reservation of laws passed by the Central Legislature. That was dealing with reservation until His Majesty's pleasure was known and that was a form of reservation which enabled the Governor-General to withhold assent to a Bill until His Majesty could be advised by the Government of the United Kingdom about the matter. That provision would have been a wholly inappropriate one to retain and obviously would have involved a derogation from the sovereignty we are now giving to the Dominions. No doubt, the Governors-General will provide immediately, as the eventual Constitution will have to provide, that there will be some sort of power of that kind vested in the Governors-General or provided for in the provisions of the new Constitution, but that will be a matter for the new Constituent Assembly.