HL Deb 13 April 1875 vol 223 cc777-80

Order of the Day for the Second Reading read.


, in moving that the Bill be now read the second time, said, that though the House was not very large at that moment, yet it would hardly be respectful to the great interests affected by the Bill not to state its provisions at this stage of its course. This was a Consolidation Bill. He might explain that, in the first instance, it had been intended to consolidate all the Acts relating to India and its Government, and such a measure had been earnestly wished for by the Government of India for some time past. But an unobserved revolution had taken place in the House of Commons which made legislation exceed- ingly difficult—he alluded to "the half-past Twelve" Rule, which had an absolutely extinguishing effect upon Bills of that kind. He therefore proposed to confine the operation of the Bill to the consolidation of the Acts relating to one of the most important branches of the law—that which applied to the legislative power of the Council of the Governor General of India to pass statutes for that country. In doing this he proposed to make some alterations in the law which chiefly concerned the Courts of Law in India, and to declare that the measures passed by the Legislative Council were not ultra vires. The Courts of India had assumed a power of which in England they knew nothing. Parliament in this country was supreme, and the Courts of Law never ventured to say that the Acts of Parliament were ultra vires; but under the Act giving power to the Legislative Council of India, the Courts in that country had assumed a jurisdiction analogous to that entertained by the Supreme Court at Washington; that jurisdiction, moreover, was not confined to the Supreme Courts, but was exercised by the lowest Courts of Summary Jurisdiction in every part of India. That provision of the Act recognized the necessity of imposing certain limits on Acts of the Legislative Council. He did not propose to interfere with the power of limitation, but to alter the machinery by which those limits were worked out, and the power of the Courts of Law brought to bear upon them. Section 22 of the Indian Councils Act restrained Governors General from making laws which should repeal or "in any way affect" any provisions of Acts therein specified. Obviously, the intention of the framers of that Act was that no laws inconsistent with the Acts in question should be passed; and from this mistake a great deal of inconvenience had arisen. On one occasion the Legislature of Bombay gave powers to a small Court to deal with offences in the streets, and this was held to affect the jurisdiction which had been previously given to a High Court. In this state of things inconvenient decisions had been given, and it was part of the Bill to prevent such decisions being given in future. A more important alteration was that which related to the legislative power of the Governor General of India in Council. In the Indian Council Act the Governor General in Council was restricted from making any law which might affect the authority of Parliament, or the constitutional rights of the East India Company, or any part of the unwritten law or Constitution of the United Kingdom of Great Britain and Ireland whereon might depend the allegiance of any person to the Crown of the United Kingdom. That provision in the law had been productive of the greatest doubts. In the case of the Wahabee conspirators Mr. Chisholm Anstey had argued that the unwritten law of Great Britain was violated by any legislation affecting the social contract, and on that ground he impugned the authority of the Government of India to make the law under which the conspirators were arrested, and called on the people to resist it. The Act was a useful one, and some of them might have wished during the discussion of last night that it had been in operation in some of our Colonies. The Judges listened with regret to Mr. Anstey's argument, but admitted that there was some excuse for it in the ambiguity of the Act which it was the object of the Bill to remove. It was quite clear that if we were to give to any Courts the power of declaring that the Acts of the Indian Legislature were ultra vires in respect of certain particular excepted laws, there ought to be no doubt as to the limits of that Legislature's action. The limitation ought to be expressed in clear and unambiguous language; and he went further and said that if we were to have the Acts of the Legislature of India revised by a Court, the revision should be made by the Court of the highest dignity. He, therefore, proposed that no Court in India should have power to say that the Acts of the Legislative Council were invalid as being ultra vires; but if the Supreme Courts of the Presidencies were of opinion such was the case, they might by three of their Members represent the facts to the Government of India, who should transmit them to the Secretary of State, by whom in turn they should be submitted to the Judicial Committee of the Privy Council. In re-enacting Her Majesty's power of disallowance, he proposed to extend it to laws or parts of laws, to avoid the inconvenience of not being able to consider a part of a whole code. He further proposed by the Bill to re- move any doubts as to the validity of certain regulations made by the Bombay and Madras Councils before full statutory power had been given them. While he was responsible for the Bill, he would acknowledge that it had been prepared by Mr. Fitzjames Stephen, than whom no more capable draftsman could have been charged with the duty.

Moved, "That the Bill be now read 2a."—(The Marquess of Salisbury.)


said, he would willingly testify his approval of the course taken by his noble Friend in consolidating the law with the assistance of so able a draftsman. He wished however to observe that the anomalies to be corrected came into existence before his official responsibility in connection with Indian affairs. He thought it was right in principle, if the Court was of opinion that an Act was ultra vires of the Legislative Council, that it should make a report to the Governor General; but he did not quite see how the provision would work. What was to happen in regard to the case before the Court out of which the necessity of reporting arose? Were all proceedings in the case to be suspended in the meanwhile? That was, perhaps, a point which could best be dealt with in Committee on the Bill; but he had thought it well to call attention to it at the earliest opportunity, in order that it might be duly considered.


said, he should like to consult legal authority before committing himself to an opinion on the point; but it was very possible that it might be desirable to insert in the Bill words enabling the Court in India to suspend all proceedings in the case before it until the question of the validity of the Act had been decided at home.


was understood to express the opinion that the modification of the law embodied in the Bill before the House was one of much value and importance. The proposal of the noble Marquess would allow the law to be acted upon, and at the same time prevent injustice.

Motion agreed to; Bill read 2a accordingly and committed to a Committee of the Whole House on Monday next.

House adjourned at a quarter past Seven o'clock, to Thursday next, a quarter before Five o'clock.