INDIAN HIGH COURTS BILL. [H.L.] (Hansard, 14 June 1928)

§ THE SECRETARY OF STATE FOR INDIA (THE EARL OF BIRKENHEAD)
My Lords, unless there is any point in relation to this Bill about which any of your Lordships feels any doubt—in which case I shall be very happy to attempt such explanation as is in my power to give—this is not a matter, I think, on which 460 I need detain your Lordships for long. The Bill received the support of my predecessor Lord Olivier, as Secretary of State, of Lord Reading and his Government, and it has equally received the support of myself, of Lord Irwin, the present Viceroy, and the Government of India as at present constituted. The High Courts in India are manned by persons with one or other of four qualifications. The Judges must have been either barristers called to the Bar in this country or members of the Indian Civil Service with long judicial experience as District Judges, or members of the Provincial Judicial Service with equally long judicial experience, or, lastly, pleaders practising at a High Court Bar in India. A succession of authorities for many years has formed the view now that it is not defensible or logical that any class of men capable of being elected to be puisne judges in a court of first instance should be excluded if recommended for their merits for the position of Chief Justice. This is the principal change effected by this Bill. There are others upon which, perhaps, I need not now dwell. The position of a vakil is assimilated to that of a barrister, but the pre-judicial qualifying period is increased from five years to ten years and is made the same in both cases. I beg to move.

§ VISCOUNT HALDANE
My Lords, I think this Bill is quite right and I have no criticism to make upon it; but I should like to be reassured by the noble Earl on one point. The Memorandum begins by setting out certain provisions of the Government of India Act, 1915. Among these is subsection (4), which provides— that not less than one-third of the Judges of a High Court, including the Chief Justice but excluding additional Judges, must be such barristers or advocates as aforesaid, and that not less than one-third shall be members of the Indian Civil Service. As I understand the meaning of the Bill, it is proposed to alter that provision by enabling anybody who is otherwise qualified to be Chief Justice, and also to add, after advocates, the word "pleaders," so that the law will be that a Judge of the High Court must be a barrister of England or Ireland, an advocate in Scotland or a pleader of not 461 less than five years standing. That is quite right, and I assume that I interpret that correctly.
But I do not like the words "barrister of England or Ireland, or a member of the Faculty of Advocates in Scotland" remaining there, because I look forward to the time when they will be called to the Bar in India. It is to my mind a great evil that so many young Indian lawyers should have to come over here, where they get a training which is by no means suitable, and are at a loose end, instead of pursuing their legal studies in India in the atmosphere of the Courts and among the pleaders there. That can be done hereafter, if it is decided to do it, by an Amendment, and I think there must be an Amendment, and I want to guard myself against in any way assenting to the proposition that a barrister should be a barrister only of the English Bar or an Advocate of the Scottish Bar. Subject to that, and subject to its being clear, which I think it is, that a vakil is now put in the same position as a barrister, by the amending Bill, I see no reason why this Bill should not pass.

§ THE EARL OF BIRKENHEAD
My Lords, with reference to the points raised by my noble and learned friend, the subsection to which he referred requires, as he has pointed out, that at least one-third of the Judges of the High Court are to be barristers. It has been found from experience that it has often tended to result in the necessity of selecting a barrister for a vacancy in preference to a vakil whose qualifications may easily be markedly superior. It is the purpose of this Bill to place the vakil is this respect in the same position precisely as a barrister. I will not at this stage deal with the other matter raised by my noble and learned friend, as he himself, I think, will probably conclude that if he desires to move at all upon this topic, the convenient stage to do so will be in Committee.