HL Deb 16 June 1873 vol 216 cc979-86

in calling the attention of the House to the necessity of extending the powers for hearing Indian Appeals contained in the statute 3 & 4 William IV., c. 41, said, the principal objection which, he believed, would be made to the proposition that it was necessary or expedient to provide for appeals of Indian Princes in cases in which they were aggrieved by acts of subordinate officials was, that those acts were acts of State, and that appeals against them to a tribunal might weaken the Executive Government. In reply to that, he would point out that in almost all the cases that he was acquainted with an appeal was desired not so much against the decision of the Government, as against the grounds, or absence of judicial grounds, upon which the Government might have decided. This view was confirmed by a case which had recently been heard by the Judicial Committee. An Indian Court had rejected a claim on the ground that an act of State was impeached. The Judicial Committee heard the appeal and decided that there was no act of State, but it rejected the appeal on other grounds. Granting, however, for argument's sake, that the acts complained of were acts of State, he could cite precedents which wont far to prove that no such evil consequences need be apprehended from a course which would substitute the reign of law for that of caprice. It was the rule in Portuguese India for Governors before returning home, to give a strict account to law officers, who not only inquired into their accounts, but also sat in judgment over them, and received depositions of witnesses and any complaints which might be made. In the Philippine Islands the Chief Judge and Supreme Court exercised a supervision over the acts of the Government, and on some occasions condemned and prevented military expeditions, and in case of the death of the Governor the Supreme Court conducted the Government until the arrival of a new Governor. Again, by the Constitution of the United States the Supreme Court judged and revised or disallowed the legislation of the States in all cases in which that legislation might appear contrary to the Constitution. It was a subject of complaint in France that though all Frenchmen were supposed to be equal before the law, yet, in fact, they were not, since a Frenchman could not prosecute or sue a Government official even of the lowest class, without previously obtaining the sanction of the Conseil d'Etat. The state of Indian Princes and of the other subjects of Her Majesty in India, under the statute of 3 & 4 William IV., c. 41, was, therefore, similar to that of Frenchmen; they could not plead against Governmental acts, unless the Government itself consented to allow them to do so. Unless further powers of appeal to the Judicial Committee of the Privy Council than those contained in the statute of William IV. were granted, the Princes of India would now be in a worse position than that in which they stood under the Company's Government, and previous to the Proclamation by Her Majesty on her assuming the Government of India, which was intended to better their status and give them confidence and security, because previous to that Proclamation, India was under a double Government, or was supposed to be so, and it was by raising a cry against, a double Government that the East India Company was extinguished. But that double Government had this advantage for the Princes of India, that it was easier for them to appeal to the Imperial Government, and easier to obtain a hearing from Parliament; and there was also this advantage for the Imperial Government, that it was then easier to revise any act without appearing to retreat from a position already taken up. As the Princes of India could not be brought before Her Majesty's Courts in India, they had no locus standi for an appeal to the Privy Council. There remained to them, it was true, the possibility of appealing to Parliament; but Parliament had not time, nor was it a very fitting tribunal, for judging of such matters as might be wished to submit to it. But that resource was now almost cut off, because insinuations had been made, and had been repeated in public prints, which now made it very difficult for any Member of Parliament to take up any ease, however much he might be convinced of its justice. The necessity for some independent tribunal to decide between the Princes of India and the local officials, moreover, would be very much increased by the great extension of railways in India. These enterprises would necessarily give rise to disputes about property and jurisdiction, arising from the conduct of the constructors of railways, which sometimes led to quarrels even in our own country. The Princes of India, who formed part of what was the Mogul Empire, were subject to the paramount Power, and ought to possess the right of appeal of subjects of Her Majesty. It was also objected that by giving to the Princes of India a right of appeal to a supreme tribunal, they might be deprived of their Sovereign rights. But this objection was rather frivolous, since these Sovereign rights, whilst debarring them at present from a legal remedy, did not prevent their being dethroned by the Indian Government. But not only the Princes of India, but also Her Majesty's Indian subjects, were not on a footing of equality with Her Majesty's British subjects for obtaining redress, or even a hearing of their complaints. For instance, there were some endowments known as the Hooghly endowments for the education of the Mussulmans of Bengal. These endowments were taken away and thrown into the common fund for the education of the Hindus. This was done by an administrative act, and, consequently, no ground for an appeal existed. But it could not be said that the Imperial Government was interested in this act of a subordinate official or in maintaining it. The matter in question was not one of policy, but of rights, to be settled by the Law Officers of the Crown. A similar case happened at Penang, where Sir William Norris, who was Recorder of the Straits Settlements from 1837 to 1847, appropriated some endowments belonging to Mussulman schools to the education of Chinese and their con- version to Christianity. It would be easy to bring forward many cases in which it would have been advantageous to the Imperial Government, whose principal object and interest was to establish its reputation for justice, to have allowed an appeal, instead of simply confirming an act, often without further information than that furnished by the person whose act had given grounds for complaint; but he would limit himself to one case, in which it would be easy to show that the Government had acted without sufficient information. He referred to the case of the Nawab of Tonk. The India Office was unacquainted with the facts of the case, and even with elementary facts. It could not be supposed that the hon. Gentleman the Under Secretary of State for India would mis-inform the House of Commons, and he, therefore, must have been himself mis-informed. The hon. Gentleman stated that the deposed Nawab of Tonk was the grandson of a notorious Pindarree. Now, it was well known that the Pindarrees were Hindus of the Mahratta territory, and the Nawab of Tonk traced his descent back for 1,200 years through Mussulman ancestors. If the name of "Pindarree" was misused for "freebooter," it was equally inapplicable, since the grandfather of the Nawab of Tonk was in the regular service of Holkar. Further on, the hon. Gentleman stated that the Nawab of Tonk's men wore "Pathans, notorious cut-throats, men of the same tribe as the murderer of Lord Mayo." Now, Pathans were men born in India of Afghan descent, and had nothing in common with the Afreedees and other mountaineers born and bred in Afghanistan. So that in these two statements there was ignorance of elementary facts. He would now give an instance of ignorance of the facts of the case; the Under Secretary had stated that "there were 15 of the Lawa men killed, while on the Tonk side only one man fell." Whilst the fact was as appeared from the Papers laid before Parliament, and the depositions of seven Hindu witnesses, that 17 men were killed in all—10 men on the Lawa side, and 7 men on the Tonk side, one of whom was a Mussulman, and the other six were Hindu sepoys. He would not, however, rely much upon those errors in the statement of the hon. Gentleman, nor upon the fact that 84 Members of the other House were in favour of an Address praying Her Majesty to refer this case to the Judicial Committee of the Privy Council. But he thought that much weight should be attributed to the opinion given by eminent counsel to questions put on this case— We are of opinion that if the Nawab were treated as a delinquent he was entitled to notice that the investigation was to be made, and that he would be held personally responsible, and that according to the ordinary principles of justice, which require that a man shall be duly informed of any charge brought against him, and shall have full opportunity of defending himself. The only step we could suggest to secure the Nawab's release, or a proper investigation into the circumstances of his case, would be the presentation of a Petition to Parliament, or a Petition to Her Majesty, praying Tier Majesty to give effect to the power contained in the statute 3 & 4 William IV., c. 41. He did not think it was a strained interpretation of that opinion of counsel to suppose that, according to it, the Nawab of Tonk's case had not yet received a proper investigation, and to show its weight he need only say that it was signed by the present Lord Chancellor, Mr. Vernon Harcourt, and Mr. Farley Leith. That case alone, he thought, was sufficient to show that some alteration in the present system was necessary.


said, his noble Friend (Lord Stanley of Alderley) had raised a very large and very important question in the most inconvenient form possible. When he (the Duke of Argyll) read the Notice, he had not the remotest suspicion of the subject to which he was about to refer. Under the form of calling attention to the necessity of extending the powers for hearing Indian Appeals, his noble Friend had raised a wholly independent question—namely, whether a new tribunal should be constituted to extend to the Government of India and to the native Princes of that country, the same principles of appeal in political and criminal jurisdiction as already existed in civil matters in the case of the Judicial Committee of the Privy Council. He need not explain that the subject to which the noble Lord's question referred had nothing to do with the Judicial Committee of the Privy Council, which was a body constituted for the purpose of hearing appeals, in the legal sense of the term, brought by persons whose suits had been previously adjudicated upon in the primary Courts. As, however, there was no Court of First Instance in India that was empowered to deal with political questions, it was clear there could be no such thing as an appeal in political cases. His noble Friend might, of course, contend that a political Court should be established in this country, and he listened attentively with a view to ascertain whether he would have a Court of First Instance or a Court of Appeal from some Court to be established in India; but he could not quite collect his views on that subject. If he thought that a Court sitting in London as a Court of First Instance could decide on the many difficult questions which arose between the Government of India and the native Princes, he (the Duke of Argyll) could not conceive a proposition less likely to receive the sanction of Parliament. There was not the machinery for the purpose. How could a Court in London determine matters which depended upon local evidence, and the fact whether witnesses were speaking the truth or committing perjury? Then, as to a Court of First Instance, it would be a Court of criminal jurisprudence for the Princes, and of political jurisdiction for the Government of India. Such a Court would largely supersede the functions of the Government, for it would, of necessity, be a Court to which the Princes of India would be amenable, and it would also exercise large political powers over the Government. It would thus have the power to substitute itself for the Government of India in regard to nearly every great question that might arise. There were three possible cases in which they might have to deal severely with the native Princes. The first divided itself into two branches, one, that of suspicion of political treachery against our Sovereign power, and he need hardly say there had been such cases; the other, that of disaffection to the Sovereignty of the Queen, of which a case occurred in the person of the King of Delhi, who on the breaking out of the Mutiny, made himself particeps criminis, and he and his family were dispossessed. Another case was that of the Rajah of Sattara, who was deposed in 1838. Could the Government of India delegate the power they exercised in those cases to any tribunal whatsoever? Was it not evident that it was a political function which must be kept in the hands of the Government of India? Then there was the case, not of political disaffection, but of gross political mismanagement of their own territory on the part of the native Princes. That was a much more delicate and difficult question to deal with, and it was one which the Government of India must reserve to itself to settle. However cruel or oppressive Princes might be to their subjects, the British Government never allowed civil war. Were they, then, to delegate to any tribunal the decision of the question whether the government of a particular Prince had reached such a point as to justify the interference of our Government? He would refer to but one ease, that of the great Kingdom of Oude and the deposition of its King in pursuance of the decision of the Government of India and of the Cabinet of England—a decision which he, for one, did not regret. The House would recollect the long-suffering of the Government of India with regard to the King of Oude. The action of Lord Dalhousie in reference to the Government of Oude was abundantly justified, as the noble Lord would find on reference to the Papers relating to the annexation. In fact, the misgovernment of Oude had reached a point which rendered it the absolute duty of the Imperial Government to assume the administration of the affairs of the Kingdom; but such a question was for the Government and not for a Court of First Instance. Then there was a third case, not of political treachery or of general mismanagement, but of individual and particular crime—happily a very rare case, but of which there had been one or two instances in the course of many years. One took place in 1838, and judging from it, he contended that Government should have the means of dealing with particular crimes. He would not, however, say that there might not be some amendment in the mode in which the Government of India dealt with the case of native Princes accused of crime. The ordinary course had been to secure a careful report from our Political Resident after he had inquired into the case. The report went through the hands of the higher political officers until it reached the Supreme Government. In that course of proceeding amendment might possibly be suggested. Instead of taking the report of a single political officer, it might be advisable to send down to him a strong commission, containing, perhaps, a judicial element, to inquire and take evidence on the spot as to the alleged crime. Such an amendment as that might very well be considered by the Government of India and the Government at home. But of this he was quite sure, that if amendment were required, it would not take the form of an independent Court. He threw that out merely as a suggestion, but strongly deprecated the proposition that the Judicial Committee in London or a Court of First Instance in India should be vested with political power to intervene between the Government of India and the native Princes.