MOTION FOR AN ADDRESS. (Hansard, 8 May 1893)

*LORD STANLEY OF ALDERLEY
called the attention of the House to the inconveniences of uniting executive and judicial functions in the same person in India; and asked the Secretary of State for India what notice had been taken by the India Government, or by himself, of the conduct of Mr. Phillips, District Magistrate of Mymensing, as set forth in the Resolution of the Bengal Government of 31st December, 1892, and of the conduct of the Lieutenant Governor of Bengal in respect thereof; and moved for the Government Letter, No. 810, J.D., dated 5th October, 1892, to the address of Mr. Phillips, and the explanation submitted by him to Government. He said, that the case which he was going to bring before the House was a good example of the evils arising from the fusion of Executive and Judicial 308 powers in India. It would be obvious that when the same person acted as police officer, Magistrate, and Judge justice could not be administered satisfactorily. From the outset the Indian National Congress had urged the necessity of reforming this state of things. If nothing had been done yet, it was partly due to the penury of the Indian Treasury; but, at the same time, if any people had a right to expect a good and sufficient Judicial system, it was the people of Bengal, where the suitors' fees pay for the whole, or nearly the whole, administration of justice in India. The noble Lord the Secretary of State for India might remember that he (Lord Stanley of Alderley) asked his attention to this subject and to Chief Justice Sir Richard Garth's Minute on it in July, 1884. He did not ask his noble Friend what had been done in the matter, since the fall of the rupee accounted for nothing having been done, but he mentioned it because it ought not to be forgotten, and because it added weight to the claim for reform of the Judicial Body. There was a Raja living at Mymensing; he had had a good English education, mixed freely in English society; he had spent large sums in works of public beneficence; not long ago he gave over a lakh of rupees for waterworks in the principal town, when the Lieutenant Governor, Sir Charles Elliott, declared that this Raja "was the leading benefactor of the district." He had also subscribed to most of the Viceroys' funds. This, however, did not avail to protect him, for last year he suffered a terrible disgrace; he was prosecuted under the Penal Code, and placed in the prisoners' dock, to stand there side by side with a common criminal. He had not yet told their Lordships what was the offence for which he was prosecuted; it was as described by Sir Richard Garth, formerly Chief Justice at Calcutta, in his article in India of 1st February last— The Raja was erecting a palace at Mymen sing, and in building the outer wall of his compound he had inadvertently closed a small drain, which, in the rainy season, helped to carry off the water from the adjoining property. Upon his attention being called to this by the Municipality, the Raja at once proposed to build a more substantial drain at a cost of some Rs. 4,000, of which he had actually paid Rs. 1,000 in advance, and had been thanked for his kindness by the Municipality. 309 A similar ease happened in this country, and last February Mr. A. Chamberlain questioned the Home Secretary as to the case of a Mr. Sankey whose chimney had been on fire; he had sent his clerk and solicitor to pay any fine that, might be imposed, but the Magistrate had issued a warrant for his arrest. Mr. Asquith said that such a course was not usual in the Metropolitan Police Courts, and he concurred with the view of the Metropolitan Courts. Owing to the Raja being away on a shooting expedition, this work was not commenced as soon as it should have been; and Mr. Phillips, who knew of the arrangements made by the Raja and the Municipality, here intervened, and ordered his Deputy to try the Raja under the Criminal Law for a nuisance and malicious mischief, although no complaint had been made by the health officer. The Raja was eventually acquitted of both offences; but the trial, which might have been concluded in a few hours, was protracted to several days, so as to put the Raja to the expense of some £2,000 for counsel, &c. In addition to what he had already mentioned, Mr. Phillips was guilty of the following irregularities—during the trial he sent a posse of policemen with rifles and a number of labourers, who forcibly broke down the Raja's walk of inclosure and re-opened the drain. He constantly interfered with his Deputy during the trial of the case, and directed his action. This Deputy Magistrate was very much to blame, but as he appeared to have acted under compulsion of the District Magistrate he would not mention his name. The Raja appealed on the 6th August last to the Sessions Judge, who in the course of the proceedings said that Mr. Phillips Had acted improperly in writing to him while the appeal was pending. He would now read to the House the Lieutenant Governor of Bengal, Sir Charles Elliott's, opinion of Mr. Phillips' conduct, as published in a Resolution of the Bengal Government dated 31st December— In regard to all judicial matters connected with this case, the Lieutenant Governor accepts the decisions of the High Court and of the District Judge of Mymensing as final, and he has confined his consideration of the Raja's Memorial and of Mr. Phillips' explanation to those points 310 on which Mr. Phillips' good faith and discretion have been impugned. 2. In respect of the latter question whether a sound discretion was exercised or not, Sir Charles Elliott must at once say that he considers that the prosecution of the Raja need not have been instituted. Looking to the position and the status of the Raja Bahadur in the district, to the fact that the Raja has been honoured by Government, and has been a great benefactor of the town of Mymensing, it was the obvious duty of the Magistrate of the district to have exhausted every means in his power of amicably settling a matter of such a nature as the obstruction of a drain before resorting to the extreme measure of prosecuting the Raja in a Criminal Court; and it does not appear that he did exhaust all such amicable measures, or even accept them when proffered. Mr. Phillips' indiscretion was aggravated by the fact that he instituted the prosecution of his own motion without consulting any medical authority or sanitary expert, and without any complaint having been made to him, that the filling up of the drain had caused a nuisance. His subsequent procedure was not less unwise. After the prosecution had been instituted, but before proceedings had been taken in Court, the Raja arranged with the Municipality to construct a main drain to carry off the water which had been obstructed, and actually deposited Rs. 1,000 with the Chairman for this purpose. The Municipal Commissioners in meeting then thanked the Raja for his action. Mr. Phillips did not, however, withdraw from the prosecution, but recorded an order that he would do so if the Raja would knock down the wall which obstructed the drainage, re-open the obstructed drain all along the bye-lane, and then build the main drain above referred to. Moreover, after the prosecution had commenced, although the counsel for the Raja proposed in Court to make a temporary drain within a week to carry off the water and then to complete a main drain according to any plan which might be approved, and although it appears that the Chairman of the Municipality was prepared to accept this proposal, Mr. Phillips rejected it at once, and on the same day, and while the prosecution was still pending, caused an opening to be made in the obstructing wall, and re-excavated and restored the bye-lane drain. It appears to the Lieutenant Governor that throughout, all these proceedings the action of Mr. Phillips was indefensible and characterised by a regrettable want of that discretion, suavity, and common sense which the Government has the right to expect, from a District Magistrate of his experience in the service. So far good, and he had now nothing more to say with regard to Mr. Phillips, as he had been removed to Monghir, and substantial justice had been done with regard to him; but he hoped that the Secretary of State would inform the House whether this had been done at the instance of the Viceroy or of himself. He said substantial justice, because it was as difficult for the Indian Government to dismiss an incompetent or mis- 311 behaving Covenanted Civil servant, as it used to be for a Bishop to get rid of a bad clergyman. It was possible that Monghir was a better post, than Mymensing, and that the friends of the District Magistrate might say that he was promoted; but Mr. Phillips would feel that it was not so. But the next paragraph of Sir Charles Elliott's Resolution was a perfect non sequitur, and after the censure which he had just read it proceeded to attempt to whitewash Mr. Phillips as follows:— 3. At the same time Sir Charles Elliott is convinced that there is no justification whatever for any imputation on Mr. Phillips motives in conducting this prosecution. That Mr. Phillips was satisfied that it was his duty, and no more than his duty, to repress by all legitimate means what appeared to be a highhanded and illegal obstruction on the Raja's part, there can be no doubt. For months previous to the institution of the prosecution the attention of the Raja had been called by the Municipality to the obstruction he had caused by filling up the ditch along the bye-lane and building a wall across it; and although he had admitted his liability to carry off the drainage water there from, and had promised to construct a main drain, he had deliberately neglected to take any action in the matter until the Magistrate personally inquired into the condition of the premises. He was acting in wilful defiance of his own promise. Mr. Phillips was indignant with what he saw, and put the law in force. The Lieutenant Governor has commented on his indiscretion, but he has no doubt that he acted in what he conceived to be in the public interest and in good faith, and with perfect integrity of motive and honesty of purpose. Now he was as ready to believe in the perfect integrity of motive of Sir Charles Elliott as Sir Charles Elliott was with regard to Mr. Phillips: and he was, moreover, certain and convinced of the integrity of purpose of the noble Marquess the Viceroy: but unless it were shown that the Viceroy has taken some steps to remedy the misconduct of Mr. Phillips, and the attempt to whitewash him by Sir Charles Elliott, the Viceroy would fall under the imputation of judex damnatur cum nocens absolvitur. It was said that the Lieutenant Governor of Bengal was coming to England on leave. That was fortunate, as it would facilitate the laying aside of the several unpopular measures he had brought in. He had reconsidered the provisions of the Mofussil Municipalities Bill; and the Behar Cadastral Survey Bill, which is equally unpopular, might perhaps also be reconsidered. It was possible he might 312 not return to India, for he had been informed that he intended to endeavour to get into another place to swell Mr. Gladstone's majority. Though he might be glad if Sir Charles Elliott left Bengal, he would be sorry if a man of his undoubted energy and capacity succeeded in finding a place among Mr. Gladstone's followers; but, perhaps, if he did present himself on the hustings, the question of "Who tried to suppress trial by jury in India?" which would inevitably be asked of him, would effectually prevent his disturbing the Liberal Party as he had disturbed Bengal. He would conclude with a sentence from Sir Richard Garth, who wrote that— He thinks his readers will agree with him that the subordinate Magistrate who tried this case is virtually the same person who directs the prosecution. He says— This is a disgrace, not so much to the Magistrates concerned, who are the mere creatures of this system, but to the Government of India, who cling to that system to give what they call prestige to the District Magistrate.

THE LORD PRESIDENT OF THE COUNCIL AND SECRETARY OK STATE FOR INDIA (The Earl of KIMBERLEY)
My Lords, the first part of my noble Friend's question, which I apprehend arose from the late Lord Chief Justice's Memorandum or speech, has reference to the inconveniences of uniting the Executive and Judicial functions in the same person in India. My noble Friend was fair enough to say he did not suppose that in the present condition of the finances of India any great changes could be made in this respect. As the noble Lord has quoted from Sir Richard Garth, I am bound to state that I in no way admit Sir Richard Garth was justified in saying that the Government of India keep up this system for the purpose of enhancing the prestige of these officers. It is admitted on all hands that is contrary to right and good principle that the Civil and Judicial powers should be united in one person. That is not a matter in dispute. The difficulty is simply this—that if the 313 present system in India is altered it will he necessary to double the staff throughout the Empire there, and it is impossible that the Government of India can find means sit the present time of making this reform. Having said this upon the general matter, I hope, at the same time, your Lordships will understand that I am in no way insensible to the inconveniences which arise from the union of those two functions. As to the special matter the noble Lord has raised, the account he gave of the case is, no doubt, in the main correct. The whole matter arose about a drain, which the Raja of My-mensing was liable, in the opinion of the District Magistrate, to put in order, and it seemed that the obstruction in the drain was not removed by the Rajah within the time specified. So far there is no dispute. But as to the conduct of the Magistrate, the noble Lord has read the opinion of the Lieutenant Governor of Bengal on the proceedings of that official. The effect of it is that the Magistrate was, in the main, justified in the action he took by the strict letter of the law. The Raja, as the noble Lord has said, is a person of the very highest character and standing; he is a man of high position, and recognised as a public benefactor by the Government, and it is obvious that any man of common sense and discretion, in which, as the Lieutenant Governor says, the Magistrate appears unfortunately to have been singularly deficient, would not have proceeded in this way against the Raja until every possible effort to arrange the matter amicably had failed. That is the sum total, plainly stated, of the offence of the Magistrate. I do not wish to underrate it, for it was a grievous want of discretion, and a want of discretion of that kind which, no doubt, being exercised by a person in that position, does not reflect any credit on the Government. It appears to me that throughout those proceedings the action of Mr. Phillips was indefensible, for, as the Lieutenant Governor says, it showed a remarkable want of that discretion, suavity, and common sense which the Government has a right to expect from a District Magistrate of experience and standing in the service. In my opinion, the Lieutenant Governor of Bengal took a right and proper course 314 in pointing out, the faults which he believed the Magistrate had committed, and, at the same time, absolving him from the charge of having been actuated by bad motives. It is impossible over here to understand thoroughly the details of a local Indian matter of this kind. The Lieutenant Governor, on the other hand, was in a position to understand and judge the case. I protest against the notion that the Viceroy should interfere in local matters such as this. Of course, if the Raja had presented a Memorial to the Viceroy asking him to take notice of what had occurred, the Viceroy would have been bound to do so; but no such Memorial was presented. Neither the Viceroy or the Secretary of State ought to interfere in a case of this kind when there is no ground for thinking that the Lieutenant Governor has been guilty of any indiscretion. He expressed that kind of censure of Mr. Phillips which, as far as I understand the case, would have been expressed by any person holding a high position and looking fairly and justly at the matter; and in fairness to Mr. Phillips, who had conducted himself satisfactorily before, he added, knowing that motives had been attributed to the Magistrate, that, he did not believe he bad been actuated by anything more than a sense of public duty, though he had performed it with a great want of common sense. I see no reason to find fault, with the action of the Lieutenant Governor. It seems to me to be thought that the Viceroy is bound to interfere in every local matter which may arise in any part of India, and that, if he will not do so, the Secretary of State should be invoked. I protest altogether against such a system. When you have appointed men to conduct such a Government as that of Bengal, and you find that they have dealt impartially and fairly with a case, I do not think it is advisable that the Viceroy should interfere. I am not surprised that the case has excited a good deal of feeling in India, and especially in the district; but I am satisfied that it is not a matter in which either the Viceroy or the Secretary of State ought to interfere, unless the Lieutenant Governor had been guilty of great indiscretion and want of knowledge of his duty. I do not say anything in defence of Mr. Phillips' conduct; but I 315 say the matter has been sufficiently dealt with. I quite agree in the condemnation of Mr. Phillips' action which has been expressed, and I think the case may be allowed to rest here. I do not think it at all desirable to produce the Papers which my hon. Friend has asked for, inasmuch as the Resolution of the Government of Bengal, which states the Phillips' case with perfect truth and fairness, has been published.

§ VISCOUNT CROSS
My Lords, I should like to say, though I know nothing at all about this particular case, because it has only lately happened, that in regard to the main principle involved, that is uniting the Executive and Judicial functions, it is a matter of the greatest importance. It is a matter which I was anxious to deal with myself. What the noble Earl opposite has said is perfectly true—that in the present state of the finances of India it is quite impossible to carry out this improvement, which would be of vast benefit to India if it could be effected. I hope when the noble Earl has discovered some means of improving the finances of India that matter will be taken in hand. I think in this case the censure of the Lieutenant Governor was entirely deserved, and that it is very unfortunate that Magistrates should treat men as this Raja was treated, because it is absolutely essential these Rajas should know that at the hands of the English Government they will always receive justice, and that they will not be insulted.

*LORD STANLEY OF ALDERLEY
said, as far as the answer had gone he had every reason to be satisfied, and he, therefore, withdrew his Motion. This matter had excited great interest in the locality, and what had been said would allay the feeling of discontent which had been aroused. As the noble Earl had said the Papers could not be produced, he would not press his application for them; but, at the same time, it would hardly benefit Mr. Phillips that his explanation could not be produced.