§ Order of the Day for receiving the Report of Amendments read.
§ THE SECRETARY OF STATE FOR INDIA (THE MARQUESS OF ZETLAND)
My Lords, I beg to move that this Report be now received.
§ Moved, That the Report of Amendments be now received.—(The Marquess of Zetland.)
§ VISCOUNT BERTIE OF THAME
My Lords, I had given the noble Marquess private notice of a question that I wish to raise on this Bill. Under this Bill there is a certain amount of control over broadcasting, but there is no control whatever over cinemas, and your Lordships know how poisonous cinemas can be. I appeal to my noble friend to put in an Amendment to cover cinemas, which he is much more capable of doing than I am, because he has eminent legal aid at his call.
§ LORD RANKEILLOUR
My Lords, may I in one word support my noble friend? I think this is a casus omissus, not only on the part of the Government but of the critics of the Bill. I gather that the Governor-General and the Governors have power to deal with anything actually seditious, but if there were anything tending to exhibit the white races in a despic- 504 able light or anything frankly immoral I do not see that the Governor-General or the Governors have any power. But perhaps it may be there.
§ THE MARQUESS OF ZETLAND
My Lords, I do not think that any addition to the Bill is necessary to deal with this matter. Cinemas and other kindred subjects are subjects for legislation by the Provincial Legislatures, and they will be dealt with in the future precisely as they are at the present time. Legislation, if I remember rightly, already exists in the Provinces. I certainly remember when I was in Bengal the question of the appointment of the Board of Censors came up, and a, Board of Censors was appointed, and I should be rather surprised to find that that was not the case in other Provinces. Of course if any display given at the cinemas were of a kind to excite racial hatred, and so lead to breaches of the peace, or if they were of a kind to injure the interests of minorities the Governor would, no doubt, step in under his special responsibilities.
The noble Viscount referred to the question of broadcasting. Broadcasting, of course, is in rather a different category from the ordinary cinema or the ordinary theatre, and it is true that in this Bill certain powers of control are taken by the Federal Government—not very wide powers, but certain powers. Both the Provinces and the Federal Government under the Bill have certain functions which they can discharge in connection with broadcasting. But, as I said, I think the noble Viscount, if he will look into the Schedule dealing with the legislative subjects, will find that cinemas and all kindred subjects are already dealt with by the Provincial Governments; and if you were to start putting in special provisions for dealing with cinemas I suppose you would have to put in special provisions for dealing with theatres and so on. With that explanation, I hope the noble Viscount will be satisfied that the matter is dealt with.
§ LORD MOUNT TEMPLE
My Lords, do I understand that any powers that may be vested in the Governments are not in any way infringed or diminished owing to this Bill? Do the same powers remain as heretofore?
§ THE MARQUESS OF ZETLAND
No, I do not think that that can be exactly the position, because the character of the Government will be somewhat altered. In future the Government will be a responsible Government, and the legislation will be passed by the responsible Government in the Provinces if they wish to alter existing laws.
§ VISCOUNT BERTIE OF THAME
My Lords, I am very much obliged to the noble Marquess for his answer, but it is a little disappointing, because I think that the Board of Censors ought to be continued specifically in this Bill. My noble friend says: "Oh, well, if there is anything objectionable which is shown, then the Government can act," but that is rather like locking up the stable after the pony has gone.
THE MARQUESS OF CREWE
My Lords, I think this matters of some considerable importance and covers rather more ground than the noble Marquess in charge of the Bill has ascribed to it. It is not merely a question of films which may be of a treasonable character, or very obviously designed to create racial prejudice. The whole matter goes somewhat further than that. There have been complaints of a number of films, probably of American origin, which have been produced at different places in India—films of the lowest character, which have tended to depreciate the white races very largely and to the creation of a certain kind of racial prejudice which is rather social than political. How far it may be possible to improve that state of things by any form of legislation I am not prepared to say. There is, I believe, a strong movement to try to circulate throughout India films of a higher character. I hope that may succeed, but I cannot help expressing a certain degree of sympathy with the object which the noble Viscount opposite has endeavoured to press upon the House. How far it may be possible to insert in this measure such a provision as he desires I am not able to say. But I hope that the noble Marquess will give the matter some further consideration in order to see whether some form of encouragement to a better class of production in the cinemas can be brought about by some means or other.
§ On Question, Motion agreed to, and Amendments reported accordingly.506
§ Clause 6:
§ Accession of Indian States.
§ (9) As soon as may be after any Instrument of Accession or supplementary Instrument has been accepted by his Majesty under this section, copies thereof shall be laid before Parliament, and all courts shall take judicial notice of every such Instrument.
§ THE MARQUESS OF ZETLAND moved, in subsection (9), after "copies," to insert "of the Instrument and of His Majesty's Acceptance." The noble Marquess said: My Lords, the object of the Amendment is to emphasise the importance as an integral part of the machinery of accession, besides the Instrument of Accession itself, of the document whereby His Majesty's Acceptance of the Instrument of Accession is formally communicated to the State. It is for the purpose of making it clear that that is an integral part of the machinery of accession that the Amendment is moved.
Page 5, line 26, after ("copies") insert ("of the Instrument and of His Majesty's Acceptance").—(The Marquess of Zetland.)
§ On Question, Amendment agreed to.
Page 5, line 28, at end insert ("and Acceptance").—(The Marquess of Zetland.)
§ On Question, Amendment agreed to.
§ Clause 9:
§ Council of Ministers.
§ 9.—(1) There shall be a Council of Ministers, not exceeding ten in number, to aid and advise the Governor-General in the exercise of his functions, except in so far as he is by or under this Act required to exercise his functions or any of them in his discretion:
§ Provided that nothing in this subsection shall be construed as preventing the Governor-General from exercising his individual judgment in any case where by or under this Act he is required so to do.
LORD RANKEILLOUR moved, at the end of subsection (1), to insert:
or in any case of emergency or exceptional difficulty in respect of which no special provision has been made in this Act.
Provided further that in any such last mentioned case the Governor-General shall forthwith report the circumstances of the case to the Secretary of State.
§ The noble Lord said: My Lords, I do not know whether this Amendment will find greater acceptance than the one I moved on the same point during the Committee stage. Your Lordships will remember that the real point at issue is this, that for the first time, I think, in any legislation within the British Empire the Governor-General and the Governors are, by the Instruments of Instructions, formally instructed to follow the advice of their Ministers, except in particular specified cases, of which no doubt there are a great number. I am informed that nowhere else in the British Empire is this form of legislation prescribed, and it is really for the first time converting the convention that the Sovereign follows the advice of his Ministers into absolute legislative order. The result of that is, of course, that in any unforeseen circumstances, any casus omissus, the Governor-General is bound by Statute to follow the advice of his Ministers.
§ It is hardly possible to suppose that we can in this Bill have thought of every case in which it may be advisable for the Governor-General to act on his own responsibility. Therefore, something seems to be necessary to deal with what we may call the residual cases, to give the residual power to the Governor-General rather than to the Ministers. The last time I proposed to meet this by giving him general powers to act on his responsibility irrespective of the cases. On this occasion I have limited it more to provide for an unforeseen case of emergency, and have suggested that in view of the importance of such a matter it should be his duty immediately to report the circumstances of the case to the Secretary of State. I think there is a real danger in leaving the Bill as it is because it would give in every residual and unforeseen case, however grave the circumstances may be, power to the Ministers rather than to the Governor-General.
Page 7, line 30 at end insert the said words.—(Lord Rankeillour.)
§ LORD ISLINGTON
My Lords, I should like to make one or two brief observations in support of the Amendment which has been moved by my noble 508 friend. We are leaving in the hands of the Governor-General a great many duties of a rather ambiguous type. It seems to me that the Government have not really taken into account the unforeseen events that may take place. All sorts of things may, and probably will, happen under this new Constitution of which people now can hardly dream. Unless the Governor-General is given some special power to meet these contingencies, there may be very serious difficulty. If he is not given powers of a somewhat specific character—and my noble friend's Amendment makes it fairly specific, so that it is no longer so ambiguous at it was—the Governor-General will be forced to take the advice of his Ministers on a matter which may be to the very definite detriment not only of India but of the whole Empire.
We have to face these contingencies which will probably occur and, that being the case, we want to give the Governor General overriding power so that he can nip in the bud at the very earliest moment anything of that kind which may happen. That is what I understand the Amendment of my noble friend aims at. It will prevent a disaster happening, and at the same time it will protect the Governor-General. If, in the event of something that is really going to be catastrophic and disastrous, he uses his judgment outside the law, and prevents it, he is going outside his province, and would get into trouble in that direction. This Amendment will make it quite clear that he will be acting within his powers, and he will only be acting on those occasions when it is absolutely essential in the interests of the country and of the Empire that he should come forward and give his definite decision. I consider the case for this Amendment a very strong one, as I think all our arguments are strong. I hope the Amendment will not suffer the fate of so many others which have been moved by my noble friends in the past few days and be rejected, but will receive a little more sympathy from His Majesty's Government.
§ THE MARQUESS OF ZETLAND
My Lords, I am afraid this is an Amendment which the Government are unable to accept. After all, we must remember what is the main principle upon which this Bill is founded. The principle is that, generally speaking, in the Provinces and 509 to a lesser extent at the Centre, a system of responsible self-government shall be introduced. That is, of course, carrying out the promise contained in the preamble of the Act of 1919. It is no doubt true that it is laid down, or will be laid down in the Instruments of Instructions to the Governor-General sad to the Governors, that except in regard to certain cases and classes of cases enumerated in the Bill itself he will ordinarily be expected to act on the advice of his Ministers. But, as the noble Lord who moved this Amendment is very well aware, there are large numbers of eases in which the Governor-General and the Governors have special responsibilities imposed upon them. In those cases they are enjoined to act upon their own individual judgment—that is to say, that within that clearly defined sphere in the Bill itself they can act contrary to the advice of their Ministers should it seem to seem to be necessary that they should do so in the discharge of the special responsibilities laid upon them. These special responsibilities cover a pretty wide ground.
The noble Lord who supported this Amendment spoke about unforeseen catastrophes taking place in India. I cannot conceive any unforeseen catastrophe which would not be covered by one or other of the special responsibilities of the Governor-General or the Governors. He has a special responsibility, for example, to prevent any grave menace to the peace or tranquillity of India or any part of India. That surely is a very wide field in which he is entitled to act contrary to the advice of his Ministers. In the case of the Governor-General safeguarding the financial stability and the credit of the Federal Government, that secures India, so far as India can be secured by any action of the Governor-General, so far as its finances are concerned. Then there are the safeguarding of the legitimate interests of minorities and so on. But I really think I need not weary your Lordships by going through the whole gamut of the special responsibilities which are imposed upon the Governor-General.
As I understand fie Amendment which has been submitted to your Lordships by my noble friend, it would impose upon the Governor-General another special responsibility but of an entirely undefined kind. I can hardly imagine a more vague special responsibility than that which 510 my noble friend desires to impose upon him. If I may say so, it would have in my view a most unfortunate effect. It would certainly blur the line of responsibility between the Ministers themselves and the Governor-General. Nobody would really know when the Ministers were responsible for a particular action and when the Governor-General himself was responsible; and since one of the main objects of this Bill is to make the Ministers responsible for their actions, so far as that is considered to be practicable in the present stage of India's evolution, that object would undoubtedly be very largely defeated if I were to recommend your Lordships to accept the Amendment which my noble friend has moved.
§ LORD RANKEILLOUR
My Lords, I confess I am disappointed by the answer of the noble Marquess. After all I am only suggesting by this Amendment, putting a responsibility on the Governor-General such as the Governor of Victoria, for instance, has to-day. What the noble Marquess is proposing is to give, with regard to these residual powers, to the Indian Legislature and to the Provincial Legislatures of India a power that is not given to self-governing Colonies. That seems to be a very strange development, and I can only protest against it.
§ On Question, Amendment negatived.
§ Clause 11:
§ Provisions as to external affairs, defence, the tribal areas and ecclesiastical affairs.
§ 11.—(1) The functions of the Governor-General with respect to defence and ecclesiastical affairs and with respect to external affairs, except the relations between the Federation and any part of His Majesty's dominions, shall be exercised by him in his discretion, and his functions in or in relation to the tribal areas shall be similarly exercised.
Loan DARCY (DE KNAYTH) moved, after subsection (1), to insert the following new 'subsection:
(2) The functions of the Governor-General under the last preceding subsection shall without prejudice to the generality of the expressions used therein include his functions with respect to the matters mentioned in the first four paragraphs of the Federal Legislative List set out in the Seventh Schedule.
§ The noble Lord said: My Lords, in rising to move this Amendment, which rakes the place of one which was moved 511 on a previous occasion by my noble friend Lord Lloyd, I feel that I might reiterate an aspiration which he expressed on that occasion by saying that I have considerable optimism as to what the Secretary of State may be able to do in regard to this Amendment. That is heightened by the fact that the noble Marquess in his reply to us expressed the conclusion that we were quite right in saying that the object of the Government and the movers of the Amendment was entirely at one.
§ The object of this Amendment is to ensure that the Central Intelligence Bureau should be under the Governor-General acting in his discretion. This is a purpose which, though it is not necessarily vital to the Bill, is one that under certain circumstances may be vital for the welfare of India. I am afraid I must weary your Lordships with a certain amount of the history of these debates. I understand that the Central Intelligence Bureau is mentioned once and once only in the Bill, but there is nothing to say that it should be under the Department of Defence or under any other Department. All that it says is that it must be in the Federal Legislative List, which is quite a different matter. In another place the Secretary of State proceeded to express his opinion that under the provisions of the Bill the Central Intelligence Bureau remained as a reserved section of the Department of Defence. It is really rather curious, because the argument that supports that is, I gather, merely the fact that it is grouped with a number of provisions which might be regarded as defence. That is in the first two paragraphs of the Seventh Schedule.
§ It is rather interesting to note that, if you look at that List, you will find that it contains matters which are not matters of defence but are, in fact, sharply contrasted with matters of defence. Your Lordships will see that "preventive detention in British India for reasons of State connected with defence" is one. Sharply contrasted with that is another: "preventive detention in British India for reasons of State connected with…external affairs." Another is in connection with the discharge of the functions of the Crown in its relations with the Indian States. That is another way of saying that that List says that preventive detention in connection with defence is in the Federal 512 Legislative List, and that other branches of preventive detention in connection with defence are in another List.
I think that the noble Marquess rather agreed with me, because in reply to the noble Lord, Lord Lloyd, he said:
With regard to the Schedule to which the noble Lord has called our attention, it is quite true that every subject which appears in the first two paragraphs of that Schedule is not necessarily a defence subject…
The grouping argument only applies in order to -put it in the Department of Defence, yet some demonstrably are not in the Department of Defence. With that I think my noble friend and I rather agree. Then the noble Marquess went on to say:
They are subjects which come under the control of the Governor-General in his discretion, and, as the noble Lord rightly pointed out, the Central Intelligence Bureau included in that category.
When the noble Marquess says that these two paragraphs are matters that come under the control of the Governor-General acting in his discretion, it causes us a certain amount of surprise, because you will find the words "preventive detention in British India for reasons of State connected with…the discharge of the functions of the Crown in its relations with Indian States." Your Lordships have only got to look at Clause 2 and subsection (2) (b) of Clause 3 to realise that that is not one of the matters that is vested in the Governor-General at all. In fact it is specifically laid down that he cannot have those powers and they are reserved for His Majesty's Representative.
§ I am not going to weary your Lordships; but at every step you find fresh inconsistencies. The noble Lord has said that this is a reserved subject. It was first said to be a defence subject and it is now submitted that it is necessarily a reserved subject because it is grouped with others which are all reserved subjects. The first argument has been shown to be wrong and was answered very effectively by the noble Marquess the Secretary of State himself. The other one, I submit to your Lordships, is also wrong, and, as the noble Lord agrees with me that it is vital that it should be clear that this matter is within the discretion of the Governor-General, all I can ask is whether he is really satisfied that it is clear. It is a matter in which we are 513 vitally concerned. We do not go into intricate questions of this sort simply for the love of boring your Lordships. It is a tedious occupation and I assure your Lordships that it is also a very difficult one.
§ When we are dealing with a measure of this size we are very much in the hands of the draftsmen, and I think that the draftsmen of this Bill deserve a. particular measure of credit for the way they have discharged their functions. But those functions are enormous, and in drafting a Bill of this size it is almost impossible not to form preconceived notions in certain matters. Judgment in small matters tends to go. I would only like to remind your Lordships of the drafting of the five Statutes in 1925 which revolutionised the practice of conveyancing. The draftsman said on that occasion that he was under the impression that the only matter likely to cause litigation was the question of what constituted a personal chattel. Well, as your Lordships are aware, that is one of the very few sections which has not been the subject of litigation. I hope your Lordships will not rest too much on the draftsmen on this occasion because I seriously submit that this is a matter to which the Secretary of States should give, I might almost say, his individual attention. To place the whole responsibility on the draftsmen is neither fair nor proper.
Page 8, line 29 insert the said subsection.—(Lord Darcy (de Knayth).)
My Lords, I should like briefly to support the Amendment moved by my noble friend. This Amendment is designed to remove all doubt about the control of the Central Intelligence Bureau and to make it quite certain that it shall be under the undivided control of the Governor-General. So far as can be seen that is the real intention of the Bill, but there are considerable obscurities which this Amendment is designed to remove. It really does seem possible that under the Bill as it stands some way might be found of removing the Bureau from the Governor-General's exclusive control. Many people regard this question as one of capital importance because the Bureau is the nerve centre of the whole of the administration, and any division of control might open the way to very serious dangers.
§ THE MARQUESS OF ZETLAND
My Lords, if I say how heartily I agree with the noble Lord who moved this Amendment as to the tediousness of some of these discussions, I hope that he will realise that I am referring only to my own part in them and not to the part taken by other noble Lords. I am conscious that I have repeated over and over again the arguments which have led the Government to come to their decision with regard to matters of this kind, but since I seem to have been singularly unsuccessful in persuading noble Lords that those arguments a re good, let me repeat once more the reason why the Government are unable to accept this Amendment. It is quite true that broadly speaking the subjects which are to be found in the first four paragraphs of the Seventh Schedule do embrace those subjects which are reserved for the Governor-General, but the fact that they appear in that Schedule does not of itself reserve them to him. The reservation is done by Clause 11. of the Bill. If I remind your Lordships of the wording of Clause 11 I think you will see that that is so.
Clause 11 says:
The functions of the Governor-General with respect to defence and ecclesiastical affairs and with respect to external affairs, except the relations between the Federation and any part of His Majesty's Dominions, shall be.' exercised by him in his discretion.
Your Lordships will note the words "shall be." There is no question of "may be." In our view—there may be some who will disagree with that view—it is far sounder, having once laid down that those subjects shall be administered by the Governor-General in his discretion, to leave it to the Governor-General himself to decide exactly what terms shall be included under the heading of defence, external affairs and ecclesiastical affairs. Your Lordships will observe that in Clause 9 (3) the Governor-General is given complete powers to decide for himself—and his decision cannot be questioned—What are, or what are not, subjects coming within the general terms defence, external affairs, ecclesiastical affairs, and so on. That is laid down quite clearly in Clause 9 (3).
§ Perhaps in order to complete the chain of responsibility I may also remind your Lordships that under Clause 14 when 515 the Governor-General is acting in his discretion he comes under the control of the Secretary of State and consequently of Parliament, so that any decision which the Governor-General comes to with regard to these matters is finally under the control of Parliament in this country. I suggest to your Lordships that rather than put into the Bill a particular category of items that have to be regarded as defence items, we should leave it to the general discretion of the Governor-General, subject to the control of the Secretary of State who, in his turn, is subject to the control of Parliament, to decide what items he requires to be maintained in these Reserved Departments. For these reasons I am sorry I am unable to accept the Amendment.
§ THE MARQUESS OF SALISBURY
My Lords, it absolutely defeats me to understand why it is that the Government are so anxious not to make their Bill clear. I cannot understand it. The original suggestion when we were in Committee was that this matter of the Central Intelligence Bureau should be considered a matter of defence. My noble friend says: "Oh, no, it might be considered to be a matter of external affairs and not defence." Therefore, it was said, it was not good to include it in the term "defence" and that we should take the first four paragraphs of the Schedule and say that they should be included under the direct control of the Governor-General. My noble friend does not deny that that is a very reasonable distinction. In fact I understood him to say that that was so. But be goes on to say: "For goodness' sake, do not make it clear. The great thing is to leave it vague so that the Governor-General may exercise his discretion in the matter." But even a Governor-General exercising his discretion would like to have something clear about which to exercise his discretion. It would help him.
Why should they insist on leaving this vagueness to the Governor-General? Of course, if the suggestion was that the Governor-General should strain the Act in order to bring things under his discretion which are not properly under his discretion, then I could understand my noble friend's argument, but I should not sympathise with him, because I think that legislation of that type would be ipso facto condemned. But if it is 516 meant that a Governor-General is going to act bona fide in using his power to interpret the Act—why, the clearer you can make it for him, the better. "Oh," says my noble friend, "it doesn't matter; there is always the Secretary of State." With the greatest respect for the intelligence of my noble friend, I should have thought that even he would like to have a. clear Act of Parliament to interpret. Why should it be left vague? What possible reason can there be?
§ THE MARQUESS OF ZETLAND
My Lords, the reason, as I have tried to explain so often, is that there may be other matters which are not mentioned in the first four paragraphs of the Seventh Schedule which at some time the Governor-General might wish to describe as a defence subject or an external affairs subject. If you are going to lay down in the Bill that these specific items are to constitute subjects in the Department of Defence, the Department of External Affairs, and so on, then there will be a very strong implication that he will not be entitled to add anything else.
§ THE MARQUESS OF SALISBURY
My Lords, I suggest that my noble friend has not read as clearly and closely as he should do the terms of the Amendment. "The functions of the Governor-General under the last preceding subsection shall without prejudice to the generality of the expressions used therein…" the very point which he has urged upon your Lordships is covered. There must be some other reason. There must be some reason behind it. Is it that lie is afraid of sending a great many Amendments back to the House of Commons? Is it an effort by the House of Commons Ministers to restrict the expenditure of time when the Bill gets to another place? I am not making an extravagant suggestion; I am very familiar with that particular phenomenon; but I assure your Lordships that it is not a good reason why you should not put into a Bill Amendments which are called for Or is it that the advisers of the Secretary of State think their Bill so perfect that they do not like any suggestion that there might be an Amendment.? All those are unworthy reasons. I suggest to my, noble friend that, if he does not like the particular form of the Amendment of the noble Lord, Lord Darcy, he should by all means suggest something 517 else, but I should have thought it was quite: obvious that, as it stands, the first paragraph of the Seventh Schedule is vague. The words come in without any apparent conviction about them, and we suggest that they should be made clear. I hope my noble friend will consider that again.
§ LORD MOUNT TEMPLE
My Lords, I do not think that the arguments of my noble friend in charge of the Bill quite agree. What has he said with regard to this Amendment? He has said, dealing with Clause 11, that we must not put into the Schedule definite duties, because we shall rely on Clause 11. He says, as regards Clause 11, that we must not tie down the Governor-General too tightly but allow him to exercise his discretion as to when defence and ecclesiastical affairs should be dealt with by him at his discretion and when they should be left to the responsible Government. Therefore, he says, we do not want anything put definitely in the Schedule; we rely on Clause 11 to give the Governor-General discretion, and therefore he rejects the Amendment of my noble friend Lord Darcy. But what did he say dealing with the Amendment of my noble friend Lord Rankeillour on Clause 9? There he said: "Oh, we cannot accept that Amendment, because it will blur the distinction between the responsible Government and the duties of the Governor-General." Now, on which leg does the noble Marquess wish to stand? Are we to give unfettered discretion to the Governor-General at the risk of blurring, or are we to take the other line? I submit to your Lordships that the Government may be right or may be wrong, but they ought not to use contradictory arguments on successive Amendments, because that rather shows that they have no good reason for refusing my noble friend's Amendment, and are making play with your Lordships' House.
§ VISCOUNT BERTIE OF THAME
My Lords, the noble Marquess reads into Clause 14 that there is control by Parliament. But surely Parliament may never know what has passed?
THE MARQUESS OF CREWE
My Lords, I find it rather difficult to understand the persistence with which noble Lords have pressed this Amendment. The issue, I should have thought, was in itself a simple one, and the question does not 518 really arise as to whether the noble Marquess in charge of the Bill appeared on a previous Amendment to express a somewhat different opinion in general terms from that which he has expressed upon this. I should have thought that the issue was simple on these grounds, because it has always been my experience, so far as it goes in matters of legislation, that where general powers are given to any Minister or any official, the moment you begin to particularise and to express certain duties and certain powers attaching to his office, you thereby do not strengthen but you weaken his position. On those grounds I feel that we are bound to support the Government in the line they have taken.
§ On Question, Amendment negatived.
§ Clause 12 [Special responsibilities of Governor-General]:
§ VISCOUNT FITZALAN OF DERWENT had given Notice of an Amendment. in subsection (1) so that the clause would read: "In the exercise of his functions the Governor-General shall have, both in relation to legislation and administration, the following special responsibilities …" and so on. The noble Viscount said: My Lords, I understand my noble friend the Secretary of State has very kindly put down a consequential Amendment to Clause 20 by which he proposes to deal with the question raised in my Amendment. I therefore will not say anything about it now except that the Amendment he has put down on the Paper has very little effect unless we know what action is proposed under the Instruments of Instructions. I would therefore respectfully ask him, when he moves his Amendment, if he will kindly say a few words with reference to what the intentions of the Government may be as regards the Instruments of Instructions and their bearing on his Amendment.
§ Clause 13:
§ Provisions as to instrument of Instructions.
§ 13.—(1) The Secretary of State shall lay before Parliament the draft of any Instrument of Instructions (including any Instrument amending or revoking an Instrument previously issued) which it is proposed to recommend His Majesty to issue to the Governor-General, and no further proceedings shall be taken in relation 'thereto except in pursuance of an Address presented to His Majesty by both Houses of Parliament praying that the Instrument may be issued.519
§ THE MARQUESS OF SALISBURY moved, at the end of subsection (1), to insert "either in the form of the draft or with such Amendments thereto as may have been agreed to by both Houses." The noble Marquess said: My Lords, I put this down only so as to put myself in order to ask a question of the Government on this matter. I do not want to take up any time. Your Lordships may remember that in Committee I ventured to submit to your Lordships that there was no machinery by which an Order in Council of the kind contemplated, submitted to both Houses of Parliament, could be amended, provided, of course, that both Houses of Parliament must agree to the Order in Council. Supposing they differed upon details, there was no machinery by which those details could be adjusted. The noble and learned Viscount on the Woolsack agreed with me that there was no such machinery—at least, I think he did in general terms—and he said that some such machinery ought to be provided. But he and I—if I may put myself on a level with him for the moment—were agreed that the actual machinery must be by Standing Order of either House and not by a specific enactment.
§ There really is no difference between us, but I think it would help us if the Government would indicate whether—since the Committee stage they have perhaps thought about this matter—they are in a position to proceed by Standing Order for the purpose of implementing these provisions. Ordinary schemes and Orders in Council have, broadly, to be agreed to or rejected—that is a simple matter—but the Orders in Council contemplated by this Bill deal with an infinite amount of detail, which ordinarily would find its place in the Act of Parliament itself, and therefore there ought to be some machinery corresponding to the machinery in regard to a Bill by which we adjust differences between the two Houses. I move this Amendment in order to see whether the Government can throw any light upon the matter before we pass this Bill.
Page 9, line 38, at end, insert ("either in the form of the draft or with such Amendments thereto as may have been agreed by both Houses.")—(The Marquess of Salisbury.)
§ THE LORD CHANCELLOR (VISCOUNT HAILSHAM)
My Lords, as the noble Marquess, Lord Salisbury, has truly observed, this reproduces an Amendment which was put down on the Committee stage and its effect, if it had been approved and carried, would be to enable Amendments to be made in the Instruments of Instructions.
§ THE MARQUESS OF SALISBURY
I am obliged to the noble and learned Viscount on the Woolsack. I ought to have said, as well as Orders in Council the Instruments of Instructions, which indeed are the more important of the two.
§ THE LORD CHANCELLOR
On the Amendment moved in Committee I indicated to your Lordships the reasons why, in the view of the Government, it was not desirable that there should be power for either House to amend the Instruments of Instructions. My noble friend was good enough, I think, to accept the view which I then put forward. I found myself in a position of some little embarrassment, because I had thought that for some reason the noble Marquess was going to explain to me that he had changed his view about the Instrument of Instruction, and I was going to do my best to persuade him that what we had agreed to in Committee was right. On these Instruments of Instructions no question arises as to reconciliation of differences of opinion between the two Houses as to Amendments, because there is no power of amendment given; but, as my noble friend quite truly says, when we come to Section 305—I think it is now Section 304—there is power to amend Orders in Council, and when this Bill becomes law, with that provision contained in it, it will, as my noble friend has said, be essential both in this House and in another place to make such alterations, by way of Standing Orders or otherwise, as will render it possible to reconcile conflict between the two Houses.
I do not know that the matter has been yet fully explored, but it is one which I understand has been under consideration by my noble friend the Leader of the House, and in regard to which he has had certain discussions with persons who are likely to give him useful advice; and it will be necessary—I suppose through the machinery of the Standing Orders Committee of this House—to make some provision by which there 521 can be a discussion for the reconciliation of a conflict of views. The exact details of the machinery have not, so far as I know, been worked out, but my noble friend may rest quite assured that the Government appreciate as fully as he does that it is essential that machinery should be provided, and that in due course both in this House and in another place proposals will be brought forward to deal with that problem.
§ THE MARQUESS OF SALISBURY
My Lords, I do not want to prolong this discussion, but I must correct one observation of the noble and learned Viscount on the Woolsack which came as a surprise to me. He said that I had agreed that there ought to be no amendment of the Instrument of Instructions, or any power of amendment. I was not aware that had done such a thing. It would have been most unwise of me if I had said anything of the kind, because I recollect that the Instrument of Instructions involves no less a subject than Dominion status, and I cannot doubt that when we come to discuss the Instrument of Instructions—I believe the Secretary of State said in the autumn—one of the things which will again engage the attention of this House and of another place is whether the Dominion status is, by a sort of side-wind, to be indicated in the Instrument of Instructions. I can conceive nothing more obviously an opportunity for a desire to amend rather than reject the whole Instrument of Instructions because of the existence of these miserable words, and so I cannot agree to that. I quite recognise, however, what the noble and learned Viscount has said, that it is not a matter really for the Bill but for Standing Orders, and perhaps, if your Lordships will allow me, I will revert to the matter on another occasion, when it is more opportune and more possible to come to a decision. I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 18:
§ Constitution of the Federal Legislature.
§ 18.—(1) There shall be a Federal Legislature which shall consist of His Majesty, represented by the Governor-General, and two Chambers, to be known respectively as the Council of State and the House of Assembly (in this Act referred to as "the Federal Assembly").522
§ (2) The Council of State shall consist of one hundred and fifty-six representatives of British India and not more than one hundred and four representatives of the Indian States, and the Federal Assembly shall consist of two hundred and fifty representatives of British India and not more than one hundred and twenty-five representatives of the Indian States.
§ (3) The said representatives shall be chosen in accordance with the provisions in that behalf contained in the First Schedule to this Act.
THE MARQUESS OF SALISBURY moved, in subsection (3), to leave out "contained in the First Schedule to this Act" and insert:
together with such other provisions as may hereafter be enacted after the report of a Commission appointed for the purpose of enquiring into and reporting as to such further provision as it is desirable to make in connection with the choosing of the said representatives and in particular as to the provision to be made as to those matters in the said Schedule which are specified to be reserved for future determination.
§ The noble Marquess said: My Lords, I am sure your Lordships will not be surprised that it is necessary once more to call your attention to the new First Schedule, which was produced, as you will remember, at the last moment by the Government. We are still groping in the dark as to exactly what is intended. At the eleventh hour, almost at five minutes to twelve o'clock, almost at the end of the proceedings, we are faced with this complete change in one of the fundamental bases of the Bill, without adequate explanation. The Secretary of State expressed the hope that the electorate which he had in view would prove to be very similar to the electorate of the Upper Houses in the Provinces. You could hardly have a more vague assurance than that. We do not even know what the electorate of the Upper Houses in the Provinces is going to be, and all he could say to give us some assurance was that he hoped that the electorate of the new Council of State would be like an electorate which has not yet been disclosed. So we are absolutely in the dark.
§ This is not merely a matter of theory. What can be done? There is no time between now and next week for us to know all the details which we require to know. The Government, I gather, are not prepared with anything corresponding to the Sixth Schedule. Your Lordships will remember that the Sixth 523 Schedule was not in the Bill as it was presented to another place. The Sixth Schedule gives all the details of the franchise for the Legislative Assemblies in the Provinces. It was not in the Bill originally, but the House of Commons thought, and I think your Lordships will agree with the House of Commons, that it was impossible to pass a Bill of this kind without knowing the details of the franchise which ought to govern the election of the Legislature of a Province. Consequently the Government acceded to that view and produced the Sixth Schedule. Now we are dealing, not with the Legislature of the Provinces, but with the Legislature of the Centre, and the Government seem to expect that we can come to a definite and final conclusion upon what the Legislature of the Centre should be without having the slightest idea of what is intended. It really is one of the most astonishing suggestions that has ever been made.
§ Will your Lordships remember that the Sixth Schedule, or a corresponding Schedule in the case of the Central Legislature, is the sort of thing which, in the shape of a Reform Bill, used to occupy Parliament in this country for a whole Session—the great big measures of the nineteenth century? I will not put it quite so high, but to a large extent these Schedules cover just the same sort of ground as was covered by the great Reform Bill. And yet we are to be content with the hope of my noble friend that when he comes to decide it he may decide it according to an undisclosed franchise which is going to be attached to the Provincial Assemblies. I am sure your Lordships will realise that we are placed in a very difficult position. I have no desire whatever to obstruct the business of the Government, but really we must try to find some way out of it: and it is in order to try to find a way out of it that I have put this Amendment on the Paper.
§ What I suggest is that these details should be referred to an inquiry by a new body who shall report to Parliament, and then of course there will be a following Act of Parliament legislating upon these details in accordance with the decision of Parliament. That appears to be the only way out of it. If the Government were able to produce a Schedule with all the proper details, that would be the most reasonable thing to 524 do, but if they cannot do it, if we must have the Bill read a third time on Wednesday next, why what else can be done except to throw all the detail forward under machinery which is reasonable, so that it may be put into proper order and submitted to Parliament in proper form?
§ Just consider the sort of thing which would have to be settled. What do we know, how much has the Secretary of State confided to us? He said he hopes it would be upon the model of the existing franchise of the existing Council of State. One might think one was, I will not say, upon solid ground, but on less quaking ground, but when one came to refresh one's memory in the OFFICIAL REPORT of what he said it appeared that, whereas the franchise of the existing Council of State is 20,000 the noble Marquess proposes to multiply that four or five times; that is to say, it is to be 80,000 or 100,000. That opens up an immense margin of doubt. What are to be the conditions of residence in order to have a vote? Is it to depend upon taxation? Is it to depend upon property? Are the soldiers to have the vote? Your Lordships will remember that the question of the soldier's franchise occupied a great deal of time in another place in the case of the Provinces.
§ Then what is the position of women? Of course, I do not mean the woman member—that is provided for in the Schedule that the Government have submitted to us. It is to be indirect. It is one of the exceptions. Whereas most other things are to be direct in the form of election, the election of women is to remain indirect. But I am not on that point. The women in the case of the Provincial Legislative Assembly have a vote upon the general list. Now, are they to have a vote on the general list of the new Council of State? We have not been told. And under what basis are they to have it? The whole conception of the new Council of State is that it is to be elected on a high franchise. How is the high franchise to be applied to the women? Are they to be simply the wives of the males elected, or is there to be some other criterion applied to them? These are very intricate matters and I do not understand upon what principle the noble Marquess is proceeding.
§ That is by no means all. The Scheduled Classes for instance. Now, the 525 Scheduled Classes are to be indirectly elected, so that the Scheduled Classes, being indirectly elected, will not depend upon a high franchise, but upon a low franchise. Here you have the Scheduled Classes—whom I want to speak of with profound respect, but who belong in many cases to a very humble order of society—and indirectly they are to be placed on an equal position with the high franchise of the other electorates. Why is that? Upon what possible logical ground can that be done?
§ I ought to remind your Lordships that these representatives are to retire in rotation triennially. A third of the Council of State is to retire triennially in rotation. I asked the Secretary of State how the particular constituencies of which the members were to retire were to be selected. He was not able to give me any reply in Committee. That is a very intricate matter. That will require regular machinery for the purpose. We have not even been told how the Government dream of doing it. Well then what about the size of the constituencies? Noble Lords know that in the case of the Legislative Assembly, when it was proposed that that should be directly elected, it was pointed out that constituencies would be unduly large. It was said: "You are going to have 250 representatives if you apply direct election to the Lower House of the whole of British India and that gives you enormous constituencies." Are you going to have any smaller constituencies hi the present case, when you are applying the system of direct election to the Council of State? No, on the contrary, the constituencies are going to be a great deal larger, because, instead of dividing British India by 250, you have to divide it by only 150. The Joint Select Committee considered and rejected the system of direct election applied to the Lower Chamber on the ground that the constituencies would be too large, whereas here they are to be twice as large—the population of British India divided by 150 instead of by 250.
§ All these things require some defence. They cannot be put in, in a glib phrase, at the last stage of the Bill and no machinery left for adjusting them. I suggest that something must be done. Of course these large constituencies are very dangerous things. There are no means of touch between the representative and his constituents. The thing is 526 ludicrous. There are going to be two and a half millions or three millions of population to each member. A high franchise, yes; but everyone knows that in a representative body the franchise is gradually lowered. We passed through it in this country. It is the policy of each contending Party to lower the franchise. What will you do with constituencies twice as large as Wales or perhaps as large as Great Britain? I say these things cannot be slurred over. When we come to the method of voting, I asked the Government in Committee whether the method of voting was going to be by post. I asked it because The Times had said so; hut, if it is not by post, I really do not knew how the voting is to be done at all. How are you going to vote over these vast areas in the ordinary way? My noble friend said we ought not to mind voting by post because Masters of Arts voted in University elections by post. I do not mind my noble friend's humour. I am very much amused and attracted by it, but it is not a very substantial answer to my question. How in these vast and semi-civilised regions are you going to deal with a situation like that?
§ Then there comes the question of the purity of elections. In voting by post, there would be no secrecy about it at all. The contending Parties would probably deal out the votes already filled in, to be enclosed in envelopes to be sent through the post. The whole thing would break down. I admit—I have always said so—that voting by ballot in the Indian case will be very difficult, but at any rate there will be some attempt at a real election of independent and impartially-minded persons. So far as I can make out, the only possible way of dealing with this situation is by post, and by post of course it is obvious to anyone who has been engaged in polities for a year the only result will be a regular, arranged affair. I see my noble friend Lord Lothian in his place. He is particularly interested in this question of corruption. I recommend the argument which I have submitted to his care and attention, and I take the opportunity of reminding him, as I have already reminded the public in a public utterance, that he does not escape from, his difficulty of corruption in the Lower Chamber even by his compromise with the Gov- 527 ernment. That remains. He has got corruption in the Lower Chamber because of the smallness of the body. He has got corruption in the Upper Chamber now because of the postal vote, so he ought to be entirely happy.
§ Then there is my noble friend the Marquess of Dufferin and Ava, who made a most interesting speech in Committee in which he explained, with, I think, absolute conviction, that you could not manage a Parliament unless you had the power of Dissolution. He said you cannot dissolve the Lower Chamber under the system of indirect election because you would only get the same Chamber returned, and it cannot be done. "But," said the Government, "that is all right. You cannot dissolve the Lower Chamber, and now we shall take care you cannot dissolve the Upper Chamber either. We will make that direct election, but we will so arrange it that you cannot dissolve the Upper Chamber." My noble friend Lord Dufferin, instead of getting any relief from the difficulties in the Bill as it stands, has had them multiplied. He also ought to be quite happy.
§ The truth is that this thing has not been thought out at all. That is quite obvious. I appeal to your Lordships in all parts of the House, whether you agree with the views which I unfortunately happen to hold on this or not—the thing has not been thought out. I do not know whether the Government have any hope of thinking it out or whether it will be done at all. I think they have a sort of view that everything can be done afterwards by Order in Council. But that is not the way to deal with a great legislative project, to get rid of the proper, orderly procedure of Parliament with its three Readings and a Committee stage and a Report stage—to get rid of all that and hugger-mugger the thing in an Order in Council. I doubt whether an Order in Council is competent to deal with it. I do not see an Order in Council to say how the voting is to be secured. I suggest to your Lordships that we must do something to pull the Government out of the difficulty in which they have inadvertently placed themselves. Let us, at any rate, arrange that there shall hereafter be an opportunity for a Commission to sit which will go into these details, to solve them in so far as they are soluble, and produce a Report which will be laid before Parliament and 528 which will be preliminary to a Bill, which will be a shorter Bill than this one, dealing with the way in which these details can be finally achieved.
§ I do not want to force this on the Government. I have not the power to do so. I do not want even to try and force this on the Government, but I want them to explain to your Lordships how their new plan is going to work and, if they cannot say that, what they propose to do to prevent the mischiefs arising which necessarily will arise. If they do not like my plan, let them say they have a plan of their own. At any rate, let us hear no more of the deliberations which have been going on for seven years by any number of different bodies, whose proposals have got to be accepted by Parliament. This is not a point which has been discussed for seven years. This has not been under the consideration of various bodies. This has been adopted by the Government in a panic at the last moment, and I ask the Government to take the House more into their confidence and tell us what they intend to do.
Page 12, line 28, leave out from ("behalf") to end of subsection and insert the said new words.—(The Marquess of Salisbury.)
§ THE MARQUESS OF ZETLAND
My Lords, the noble Marquess has spoken at very considerable length upon a question which, after all, so far as that part of it which has not yet been settled is concerned, is really only a small part. The noble Marquess seems to assume that there are an enormous number of questions to be dealt with in making the change from a system of indirect voting for the Council of State to a system of direct election. Really the only question which has still to be examined, and is being examined now by myself in consultation with the Government of India and the local Governments, is the actual qualification required to give an elector a vote for the Council of State. I can give the noble Lord an approximate idea of what it would be. I have always told him it will be a high property qualification. It will probably be rather lower than the present high property qualification in the case of the electors for the existing Council of State. So far as the election of the special interests is con- 529 cerned, the minorities, no change of any kind is proposed to be made, and the noble Lord has no doubt been able to study the proposals with regard to that long before I acceded, as I thought, to the general wish of the House in accepting an Amendment. When I accept an Amendment the noble Marquess turns round and says the Government are doing this in panic. Of course the noble Marquess is entitled to his own opinion, but I can assure the noble Lord that he is quite wrong. Certainly the Amendment was not accepted in panic. It was accepted in response to a generally expressed idea in all parts of your Lordships' House.
§ THE MARQUESS OF SALISBURY
If I may interrupt, the general feeling in the House was that the other alternatives were quite unacceptable: that was the reason.
§ THE MARQUESS OF ZETLAND
That brings me to a question of some interest. Which of the alternatives does the noble Marquess prefer?
§ THE MARQUESS OF ZETLAND
I thought not. The noble Marquess has no idea at all as to how the Council of State should be brought into being. I have studied with great interest the various pronouncements of the noble Marquess on this question. I listened with great interest to all he had to say in those prolonged discussions which took place in the Joint Select Committee upon this very important question, and I am bound to say, after the most prolonged, and, I really think, careful study of all that the noble Marquess has said upon this question, I am left completely in the dark as to how he would bring a Council of State into existence.
But let me assure the noble Marquess that really the only question left over is the question of the qualification for the voters. The question of the qualification for the voters for the Upper Houses in the Provinces has also been left over. That was done in the original Bill and no complaint was ever made about that. That question is still left over, and it is intended that it shall be dealt with by an Order in Council. But so far as the details of the constitution 530 of the Council of State under the Amend-merit which was agreed to by your Lordships to the Schedule are concerned, those details are all there. The noble Marquess will find the arrangements which are proposed for the election of women; he will find the arrangements which are proposed for the election of the Anglo-Indians and the Europeans and the Indian Christians, and so on. As I have said more than once, the only change which is made by accepting this Amendment is that in the general seats the election is to be by direct election in territorial constituencies instead of by indirect election by Upper Houses and Electoral Colleges.
The noble Marquess talked about huge constituencies. I have always myself held that there are great practical difficulties in a system of direct election in India in the circumstances of to-day, owing to the size of the constituencies where you have a, vast electorate, but I have always held that those objections do not apply when you have got a small well-educated intelligent electorate, as you will have for the Council of State. The two things are really, if I may say so, not on the same plane at all. In the earlier part of the noble Marquess's speech I was beginning to infer from what he said that I was going to act as an autocrat in this matter; that I was going to get the Bill passed and then with a stroke of the pen, when I had made up my mind, I was going to decide what the franchise was to be. Fortunately the noble Marquess towards the end of his speech disabused me of my belief that that was what he held. He told us that the intention of the Government was to hugger-mugger the thing through the Houses of Parliament by means of an Order in Council. I am not myself very clear as to what is actually meant by "hugger-muggering" a thing through the Houses of Parliament by means of an Order in Council, but it certainly is the intention of the Government to submit this matter to Parliament by means of an Order in Council, just as it was the Government's intention long before I accepted any Amendment in this matter to submit to both Houses of Parliament the qualifications required for the electors in the case of the Upper Chambers in the Provinces.
I hope that I have made it clear that the Government have not done this thing 531 in a panic or that they are guilty of any Machiavellian scheme for smuggling something through behind the back of Parliament. I regret that I cannot accept the Amendment of the noble Marquess. The Delimitation Committee is shortly about to proceed with its work in delimiting the territorial constituencies not only for the Upper House but for the other Legislatures as well, and the question of which constituencies should be asked in the case of the Upper Chamber to limit their representatives for three or six or nine years, as the case may be, at the first election, will be one of the matters upon which I shall certainly ask the Delimitation Committee to express an opinion. At the same time, if the noble Marquess will study the Table which is included in my Amendment of the First Schedule, he will find that we have put down a provisional scheme dealing with that matter, and the basis of our scheme, which is certainly not a hard-and-fast. scheme—it is subject to alteration—is that the number of those who are elected for the shorter period in the case of the first election should be distributed as far as may be broadly over the Indian Continent.
§ THE MARQUESS OF SALISBURY
My Lords, I have no desire to press this Amendment. I only offered it to the Government to enable them to get out of their difficulty. They seemed to be quite satisfied with the position as it is. I have said all I have to say to your Lordships. The dilemma which the noble Marquess tried to put me in really has no importance whatever. He says he does not know which plan I prefer. I share the conviction with the Simon Commission that the application of these representative methods on our lines to India is a practical impossibility. That is a conclusion I came to a long time ago and to which I think, at some time or other, the Government will also come. I beg leave to withdraw.
§ Amendment, by leave, withdrawn.
§ Clause 20:
§ Right of Governor-General to address, and send messages to, Chambers.
§ (2) The Governor-General may in his discretion send messages to either Chamber of the Federal Legislature, and a Chamber to whom any message is so sent shall with all convenient dispatch consider any matter which they are required by the message to take into consideration.532
§ THE MARQUESS OF ZETLAND moved, in subsection (2), after "Legislature," to insert "whether with respect to a Bill then pending in the Legislature or otherwise. "The noble Marquess said: My Lords, this Amendment has been put down in order to meet so far as I can the desire of my noble friend Viscount FitzAlan and my noble friend Lord Rankeillour to safeguard the interests of minorities. No doubt they had particularly in mind the Christian minorities. Under Clause 20 as it is at present subsection (2) provides that the Governor be empowered in his discretion to send messages to either Chamber of the Federal Legislature, and the Chamber to which any message is so sent shall with all convenient. despatch consider any matter which they are required by the message to take into consideration.
§ The case which my noble friend put to me was this. He said there might be a Bill being discussed in the Legislature which the Governor-General might very soon coma to the conclusion would inflict some injustice upon a minority. My noble friend suggested, and I am bound to say that I agree with him, that, the Governor-General having come to that conclusion, it would be only reasonable that he should at the earliest possible moment inform the Legislature that if they proceeded with the Bill in the form in which it then stood he would feel it his duty to withhold his assent. The words which I propose to insert in this clause are intended to call the attention of the Governor-General to the point which I have just been making to your Lordships. But I think an additional caveat will be required to give effect to what the noble Lord has in mind in the Instrument of Instructions.
The noble Lord asked me whether I would give him the kind of sentence which I would propose should be added to the Instrument of Instructions to complete his proposal. I do not wish at this stage to bind myself to the actual words, but I can tell the noble Lord the kind of words I have in mind at present. At the end of paragraph XXVII, which is the first paragraph under the category of "Matters affecting the Legislature," I would propose to insert some such words as these:
In considering whether or not he shall assent in Our name to any Bill other than a Bill of any of the classes enumerated in
the foregoing sub-paragraphs Our Governor-General [and in the case of a Province Our Governor] shall without prejudice to his power to withhold his assent upon any ground whatsoever have special regard to the effect of the Bill upon any of his special responsibilities.
That, of course, clearly covers his special responsibilities with regard to the question of protection of minorities.
§ May I say just one word, because I know the noble Lord is interested in this matter, with regard to the general question of the powers of the Legislatures to legislate on special questions which clearly are the sort of questions which may affect the interests of minorities? In the case of a Government Bill the Governor-General at the Centre and the Governor in a Province could, of course, acting upon their individual judgment, require their Ministers not to introduce a Bill if they were satisfied that it was going to inflict injustice upon a minority. I admit that the position of a Private Member's Bill is a different are It was always contemplated that we should leave to the Indians themselves the task of social reform, touching as it does so often in the case of India religious practices and traditions. We thought it was only right that private members who wished to bring questions of social reform before the Legislatures and through them before the public should certainly have the right of doing so After all, it is only by education that you can secure reforms of the kind I have in mind in a country like India, and the best form of education is public discussion primarily in the Legislature and secondly in the Press and on the platform outside. We would not be willing therefore to prohibit private members from introducing Bills of that kind, but I think we do meet the case of the Private Bill by the addition which I now propose to Clause 20 of the words "a Bill then pending." Taking this Amendment with the words which I propose to insert in the Instrument of Instructions I hope my noble friends will feel that I have so far as it is possible met them in this matter.
Page 13, line 23, after ("Legislature") insert ("whether with respect to a Bill then pending in the Legislature or otherwise").—(The Marquess of Zetland.)
§ LORD RANKEILLOUR
My Lords, as I had some part both in the Joint Select 534 Committee and later in this matter, I desire to thank the noble Marquess the Secretary of State for what he has done. I think the addition of these words is a real improvement and it carries out a formal recommendation in the Report of the Committee on this very matter. It is quite true that latent in the Bill was this power to carry out that, particular suggestion, but now this makes it quite clear. May I just say one thing with regard to the words in the Instrument of Instructions? I think after the words "assent to" it would be expedient—and I can see no objection to it—to add "or take. any other action thereon." That would really link it up with the Amendment. That would help him, instead of 'vetoing the Bill, to take action under Clause 20.
One other thing I am bound to mention. The noble Marquess will remember that there were Amendments on the Paper directing the Governor-General or the Governors to take pains to see that there was proper machinery for considering and dealing with the grievances of minorities. They were withdrawn on the general statement of the noble Marquess that he would deal with that in the Instrument of Instructions. I do not know whether he would wish to make any statement now about that, or whether something should be moved on a later clause to enable him to make a statement. I fancy the matter must have escaped his attention. Speaking generally, although this Amendment is not, all one could wish, the noble Marquess has gone a very considerable way, and without prejudice to the manifold objections to other parts of the Bill I cordially thank him.
§ THE MARQUESS OF ZETLAND
My Lords, I can only speak again by the leave of your Lordships, but I should like to be permitted to say that it is quite true that there is a further paragraph which I should propose to insert in the Instrument of Instructions which I did not read out. It is what the noble Lord asked that I should do—namely, make provision for prompt attention being paid to any representation received by his Government from any minority.
§ THE MARQUESS OF ZETLAND
Certainly I will read it, with your Lordships' permission. In paragraph XI of 535 the Governor-General's Instrument and in paragraph X of the Governor's Instrument, which may be found on page 4 and page 13 respectively of the Command Paper, I would insert some such words as these:It is moreover Our will and pleasure that Our Governor-General"—in the case of the Centre—and Our Governor"—in the case of a Province—shall interpret the said 'special responsibility as requiring him so to exercise his powers in relation to the making of rules for the more convenient transaction of the business of the Federal "—or Provincial—Government as to ensure that prompt attention is paid to any representation received by his Government from any minority.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, in view of what the noble Marquess has just said, and in view of the interpretation he has put upon the Amendment and the words which he proposes to insert in the Instruments of Instruction to the Governor-General and the Governor, I associate myself with what has been said by the noble Lord, Lord Rankeillour, and though in some respects I could have wished that further and clearer provisions had been made in the interests of minorities, yet I think that what he has done goes a very long way and at any rate an acceptable way to remove the apprehensions which have been communicated to me by certainly one of the great minorities in India.
§ VISCOUNT FITZALAN OF DERWENT
My Lords, I should like to be allowed to thank my noble friend very much for the kind consideration he has shown and the trouble he has taken in dealing with this matter. I quite understand what he has said in reference to the wording of the Instruments of Instructions. We cannot expect him to be tied to those words now, but I have no doubt that, between now and the time when they will be brought forward, we shall have an opportunity of considering them further.
§ On Question, Amendment agreed to.536
§ Clause 21:
§ Rights of Ministers and counsellors as respects Chambers.
§ 21. Every Minister and every counsellor shall have the right to speak in, and otherwise to take part in the proceedings of, either Chamber, any joint sitting of the Chambers, and any Committee of the Legislature of which he may be named a them-her, but shall not by virtue of this Section be entitled to vote.
§ LORD HASTINGS moved to leave out "and every counsellor" and insert "every counsellor and the Advocate-General." The noble Lord said: My Lords, the purpose of the Amendment which stands in my name to Clause 21, and also of the further Amendment to Clause 64, and again of that to Clause 336, is to raise the question of the desirability or otherwise of providing the Governor-General at the Centre, the Governor of Burma and, more particularly, the Provincial Governors with spokesmen in their respective Legislatures. The House will recollect that on the Committee stage an Amendment was moved and supported from below the Gangway suggesting a considerable addition to the number of counsellors at the Centre; and in the course of the debate which ranged round that Amendment it was observed that the three counsellors for the Reserved Departments now provided for in the Bill who, under the Bill, had the right to sit and speak in either House of the Central Legislature but not to vote therein, could be used as might be directed by the Governor-General to act as his spokesmen there.
§ I felt, and I dare say a few other noble Lords also felt, that although it certainly was a fact that these counsellors could be so used, it would probably be very much better, and they would stand better with the Legislatures, if in fact they were confined to representing the interests of these particular Departments for which they were responsible. When we came to discuss the arrangements for the Provincial Legislatures, a similar Amendmeen stood upon the Paper, but it was not moved, and therefore I had no opportunity of making then an alternative suggestion which I had in mind, and had to delay it until the Report stage.
§ There are two points which arise. The first is to decide whether in the opinion of the Government and of the House it 537 really would be helpful and is in any way desirable to provide for the Governor-General, for the Governor of Burma, and again, more particularly, for the Provincial Governors, spokesmen in their Legislatures; and if by chance that should be decided in the affirmative, it then remains to be decided who should be selected as spokesmen. On the first point, it is quite true that at the Centre and also in Burma there will be available certain counsellors who could in certain circumstances be available for the conveyance of messages to the Legislatures from the Governor-General and from the Governor of Burma. Whether they are the ideal persons for the purpose is open to question. But in the Provinces there are no such persons available. It is not only conceivable, but I submit practically certain, that occasions will arise when the Governors in the Provinces will most urgently desire to have spokesmen who can express to the Legislatures their view without equivocation.
§ It is a mere platitude to say that crisis can be and usually is avoided by plain statements made without equivocation in proper time, and cannot conceive that Indian Legislatures will be slower to appreciate those facts than other Legislatures and other corporate bodies throughout the world. If the House is in agreement with me that it is really desirable that Provincial Governors should have the means of expressing to their Legislatures without equivocation their opinion upon certain subjects which are at the time in debate, then it becomes necessary to settle and decide upon the selection of the individuals. The Bill already provides for counsellors at the Centre and for counsellors in Burma, and it would, I suppose, in a sense be easier to provide for the appointment of a counsellor or counsellors in each of the Provinces, but the counsellors for the Reserved Departments at the Centre and in Burma cannot very well be reproduced in the Provinces, for the reason that every Province has not got a Department which could as a Reserved Department afford enough for a counsellor to do. There is only one Reserved Department in each Province and that is a Department for the Backward Areas, but every Province has not got a sufficient area of backward area, if I may use those words, to justify the appointment of an individual counsellor. Consequently we 538 have to fall back upon some other alternative.
Now there is one other individual, or rather one office which is to be filled throughout the whole of these Legislatures and that is the office of the Advocate-General. There is an Advocate-General to be appointed for the Centre, there is an Advocate—General to be appointed for Burma, and there is an Advocate-General to be appointed for every Provincial Legislature. If I can find the appropriate clause in the Bill I should like to draw your Lordships' attention to the manner of appointment of the Advocate-General because it may be felt possibly by seine noble Lords that it is very desirable, if you are going to have a spokesman for the Governor-General, the Provincial Governors and the Governor of Burma, that he should be a real spokesman and not an artificial one. Now I pick out Clause 55 because it is repeated in two other places in the Bill. It reads:
The Governor of each Province shall appoint a person, being a person qualified to be appointed a Judge of a High Court, to be Advocate-General for the Province.
Subsection (3) of the same clause says:
The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.
Subsection (4) says:
In exercising his powers with respect to the appointment and dismissal of the Advocate-General and with respect to the determination of his remuneration the Governor shall exercise his individual judgment.''
That makes it fairly certain that the Advocate-General will be the representative spokesman of the Governor-General, the Provincial Governor and the Governor of Burma. That being so I would suggest that if His Majesty's Government, and your Lordships in this House, are of opinion that it would be wise to provide these Governors with a spokesman, the proper person to select is the Advocate-General.
§ There is another reason. The Advocate-General necessarily will be a trained speaker, and the Governor-General and the Governor of Burma and the Governor of a Province would clearly desire an expression of their own opinions to be made in the Legislatures by persons qualified to do so. I think I have said enough to present a case for consideration. Personally I am of opinion that the inclusion 539 of this Amendment and the two consequential Amendments could not conceivably do any harm, and might be found to be exceedingly helpful on occasions, and I would desire to press it upon the Government, hoping that they and the House will be of the same opinion 'as I am in the matter. If by chance the Amendment is accepted, I shall beg leave to invite the House to regard the other two Amendments as consequential. If, on the other hand, the Government 'and the House are not of my opinion I shall not move the other two Amendments.
Page 13, line 27, leave out ("and every counsellor") and insert ("every counsellor and the Advocate-General").—(Lord Hastings.)
§ THE MARQUESS OF ZETLAND
My Lords, I think the noble Lord has made out a good case for this Amendment. It is quite true that, so far as my memory serves me, we always did contemplate there should be someone who could speak for the Governors in the Legislatures in the Provinces, and so far as my memory serves me the general view was that the Advocate-General was the most suitable person. In these circumstances I am prepared to accept the Amendment.
§ On Question, Amendment agreed to.
§ Clause 25:
§ Vacation of seats.
§ 25.—(1) No person shall be a member of both Chambers, and rules made by the Governor-General shall provide for the vacation by a person who is chosen a member of both Chambers of his seat in one Chamber or the other.
§ THE MARQUESS OF ZETLAND moved, in subsection (1), after "Governor-General," to insert "exercising his individual judgment." The noble Marquess said: My Lords, the reason for the insertion of these words is that in most of the provisions of the Bill relating to the framing of rules in connection with elections the duty has been imposed on the Governor-General or the Governor, as the case may be, exercising his individual judgment, with the idea that it was desirable, of course, to secure as much impartiality as possible in matters of this kind.
Page 15, line 22, after ("Governor-General") insert ("exercising his individual judgment").—(The Marquess of Zetland.)
§ On Question, Amendment agreed to.540
§ Clause 45:
§ Power of Governor-General to issue Proclamations.
§ (5) If the Governor-General, by a Proclamation under this section, assumes to himself any power of the Federal Legislature to make laws, any law made by him in the exercise of that power shall continue to have effect notwithstanding the revocation or expiration of the Proclamation, and any reference in this Act to Federal Acts, Federal laws, or Acts or laws of the Federal Legislature shall be construed as including a reference to such a law.
§ THE MARQUESS OF ZETLAND moved, in subsection (5), to leave out "continue to have effect notwithstanding the revocation or expiration of the Proclamation" and insert "subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the Proclamation ceases to have effect, unless sooner repealed or re-enacted by Act of the appropriate Legislature. "The noble Marquess said: My Lords, this is an Amendment which deals with the position of laws which have been made by Proclamation by the Governor-General during a period of emergency, and noble Lords may remember that in the course of the Committee stage it was agreed that it was desirable that those laws should not come to an end immediately after the Proclamation ceased to have effect. It has, however, been represented to me that it is undesirable that such laws, which in some cases might be drastic laws, should continue indefinitely, and as a result of consultation with those who do represent the Ruling Princes and others, we have agreed that these laws should remain in force for a period of two years, unless, of course, previously dealt with. I beg to move.
Page 32, line 3.5, leave out ("continue to have effect notwithstanding the revocation or expiration of the Proclamation") and insert the said new words.—(The Marquess of Zetland.)
§ On Question, Amendment agreed to.
§ VISCOUNT FITZALAN OF DERWENT moved, after Clause 45, to insert the following new clause:
§ Commencement of Part III.
§ —(1) This Part of this Act shall not come into force until, such date as His Majesty may by Order in Council appoint, being a date within two years of the report 541 of a Commission appointed under the provisions of the next succeeding subsection.
§ (2) His Majesty may at any time by Order in Council appoint a Commission to enquire into and report upon the financial condition of India."
The noble Viscount said: My Lords, in moving this Amendment I should like to remind your Lordships of the words used by my noble friend the Secretary of State on the Committee stage of this Bill. He said:
It is our intention, and it has been the intention of the Government from the start, that an expert financial inquiry should be made in India, not before the establishment of the All-India Federation, which after all is a thing which cannot be brought into existence For sonic time to come, hut before the establishment of Provincial Autonomy.
I hope my noble friend will not think for a moment that the Amendment I am now moving is intended in any way as a reflection upon the statement which I have quoted as coming from him.
§ Both myself, I need hardly say, and those associated with me in this Amendment, have absolute confidence in the sincerity of intention of my noble friend. What we have not confidence in is the possibility of changes taking place. We cannot regard my noble friend as a permanent Secretary of State for India. Accidents may happen, and he may no longer be where he is at the moment when perhaps we should most like to see him there. Therefore we do wish to call attention to the fact that while we believe in his sincerity as to a Committee of Inquiry, we want to go further. He did not tell us, in the words which I have quoted, what kind of inquiry he had in mind, or what the terms of reference would be. We think this matter is of such importance that we ought to go further, and, after all, this Amendment of mine is only dotting the "i's" of the Government's own proposal. We think that this matter ought to be dealt with by a Statutory Commission, and that the terms of reference ought to be laid before Parliament.
§ There is, after all, undoubtedly a great deal of anxiety as to the financial position. It is quite true that there are signs of improvement in India, as there are here, and we may well hope that that may continue; but financial experts are undoubtedly of opinion that, however great the improvement may be, it will not be sufficient to deal with all the increased expenditure which will be entailed. It is unnecessary for me now 542 at the Report stage to repeat the various items of expenditure about which we had considerable discussion at various times. It is natural, of course, that the Government should take as rosy a view as possible of the financial position. It is perhaps equally natural that we, the critics, who after all are as human as the Government, should take a rather more pessimistic view. But whatever the merits may be as to our respective views, there is no doubt that more money will have to be found.
§ After all, finance is the foundation of this Bill. The thing cannot work, cannot start, without a satisfactory financial position in India. And whatever our estimates of the future may be, it is quite evident, as I have said, that more money will be required, and we believe that it is only right that a proper inquiry in accordance with the usage and custom of Parliament should be held. I cannot see what harm it can do, either to the Government or to the Bill; on the contrary, I believe it would relieve a great deal of anxiety if the Government would accept this Amendment, and make it clearly understood that the country can look forward to this particular point being dealt with by Parliament as Parliament ought to deal with it. I beg to move.
§ THE LORD CHANCELLOR
My Lords, may I ask the noble Viscount, Does he desire his Amendment to come at the end of Part II, or at the beginning of Part III? If we put it at the end of Part II, "This Part of this Act" means the Federal Part, if the beginning of Part III it means the Provincial Part.
§ VISCOUNT FITZALAN OF DERWENT Part III, I think.
After Clause 45 insert the said new clause.—(Viscount FitzAlan of Derwent.)
THE MARQUES OF ZETLAND
My Lords, when this matter was discussed at considerable length on the Committee stage I informed your Lordships what was the procedure which we proposed to take with a view to laying before Parliament, when the time arrived, a Report upon the financial position in India, and particularly in regard to the financial possibility of bringing the new Constitution into operation. I hope that the noble Viscount will not wish to press this Amendment. What I told your Lordships 543 I had in mind I still have in mind; indeed it has gone further than being merely in my mind. I have already initiated the scheme. What I had in mind was a small expert financial Committee which would be directed to go into the special financial questions which are concerned with the changes which it is proposed to bring in in connection with the new Constitution. The Report and all the information which that Committee collects will of course be submitted to Parliament for future consideration, and Parliament will then be in a position to judge whether the time has or has not come when the first part of the new Constitution, namely, Provincial Autonomy, can be inaugurated. Parliament will have complete control because in any case Provincial Autonomy could not be inaugurated without Parliament giving its formal assent to an Order in Council bringing the scheme into operation.
If I may suggest to my noble friend, I think the proposal which I have made, and which I am at present acting upon, will be the more efficacious and the more speedy. If we are to have a Parliamentary discussion on the actual appointment of what would, I suppose, be something in the nature of a Royal Commission, a good deal of delay must take place. As to laying the Report before Parliament the noble Viscount very kindly said that he was satisfied that I would carry out what I said, but, he said, accidents do occur—I hope no serious accident is impending—and someone else might be standing in my place in whom possibly the noble Viscount might not have the same confidence. I would point out that that does not really affect the question, because Parliament must discuss the financial question before it considers the Order in Council, or while it is considering the Order in Council, bringing Provincial Autonomy into operation.
§ THE MARQUESS OF SALISBURY
My Lords, when does my noble friend propose that this inquiry should take place? I do not mean, of course, to ask anything unreasonable, but I was very much interested to hear that he had already taken steps to formulate the sort of inquiry. I wondered whether he was contemplating that it should proceed at once to consider the financial position of India, or if not at once, when.
§ THE MARQUESS OF ZETLAND
No, I must not be taken as binding myself in 544 any way to dates, but I should hope it would certainly begin its work during the coming cold weather.
§ LORD ISLINGTON
My Lords, I should in some respects have preferred the proposal of my noble friend in his Amendment to what the noble Marquess has said. At the same time I quite realise that it would have meant a Commission and everything that is apt to delay the work of a Commission. What is wanted, I suppose, is an expert Committee, but at the same time one would like to feel in a matter of this immense importance that it is not only an expert Committee but a Committee of men who would have had some of the broader and wider experiences of State administration in regard to finance and other matters. I think it would have been more satisfactory if one had heard that the Committee was rather broader in its constitution. Personally—and I believe many of my noble friends agree with me—I think this is really the most important fabric and foundation of the whole of this great measure. The measure indeed cannot operate unless there is finance, and solvent finance, not only in the Federal region but also in the Provinces. You cannot separate the Federal position from the Provinces. They are an integral part of the whole and they are so closely wedded together that it requires a very broad and at the same time a very minute examination to get at the position before this Constitution can be established. I suggest that in addition to the experts the noble Marquess has in mind there should be one or two representing the broader side of the question to which I have referred.
§ VISCOUNT FITZALAN OF DERWENT
My Lords, I confess I should prefer a Statutory Commission. I quite appreciate the argument against it put forward by my noble friend, but at the same time I do not think it would take so long as he fears. However, I shall not press my Amendment any further after what he has said, but I should like to ask whether he will be able, before the House adjourns for the Recess, to give us the names of the four gentlemen I understand he has in view.
§ THE MARQUESS OF ZETLAND
My Lords, I shall certainly bear that request of my noble friend in mind, but I cannot 545 give him a promise on the point, because possibly some of those I have in mind may not be able to accept my invitation.
§ Amendment, by leave, withdrawn.
§ Clause 52:
§ Special responsibilities of Governor.
§ (2) & and the Governor of Sind shall also have the special responsibility of securing the proper administration of the Sukkur Barrage Scheme.
§ THE MARQUESS OF ZETLAND moved, in subsection (2), to leave out "Sukkur Barrage" and insert "Lloyd Barrage and Canals." The noble Marquess said: My Lords, I desire to put into the Bill the official title of the great engineering work which is probably one of the greatest engineering schemes of which we have any practical knowledge. I have frequently in the past had occasion to refer to this particular scheme, because it is one in which I have myself taken a great interest, and I have always referred to it by what I understood to be its official designation—namely, the Lloyd Barrage and Canals. I took care to ascertain whether I had been correct as to what the actual official designation was, and I find I am. May I say how happy I feel that the name of one of your Lordships who really has played a great part in founding these immense irrigation works should, incidentally, be commemorated in this Bill?
Page 37, line 9, leave out ("Sukkur Barrage") and insert ("Lloyd Barrage and Canals").—(The Marquess of Zetland.)
§ On Question, Amendment agreed to.
§ Clause 57:
§ Provisions as to crimes of violence intended to overthrow Government.
§ 57.—(1) If it appears to the Governor of a Province that the peace or tranquility of the Province is endangered by the operations of any persons committing, or conspiring, preparing or attempting to commit, crimes of violence which, in the opinion of the Governor, are intended to overthow the government as by law established, the Governor may, if he thinks that the circumstances of the case require him so to do for the purpose of combating those operation, direct that his functions shall, to such extent as may be specified in the direction, be exercised by him in his discretion and, 546 until otherwise provided by a subsequent direction of the Governor, those functions shall to that extent be exercised by him accordingly.
§ LORD RANKEILLOUR moved, in subsection (1), after "If it appears to the Governor of a Province that", to insert "(a) the safety of any frontier of the Province is threatened, or (b)". The noble Lord said: My Lords, the object of this Amendment is that the Governor of a Province, if he thinks the safety of his frontier is in danger, shall be able to take over any part of the Government into his own hands, just as he can in the case of treasonable conspiracy. This has special reference, of course, to the North-West Frontier Province where the possibilities of trouble are well known to your Lordships. My noble friend in charge of the Bill told me, if I remember aright, when I raised this question before, that this Amendment was unnecessary because it came within the sphere of defence, and the Governor-General, not the Governor, could deal with it accordingly. I hope he will be able to convince me that that is so, but it seems to me there is a gap in the reasoning to prove that. It is quite true that the Governor-General is responsible for defence, which is a reserved subject. It is quite true that he can interpret what is the sphere of defence and, following from that and also from certain of his special responsibilities, he or the Federal officers can direct the Executive under his control to take what measures he may think necessary. But does that hold good when you come to the question of powers which by this Bill, when it becomes an Act, will be given to the Provinces? I think that is really the point that needs explanation.
§ It is the fact that under Clause 54, the Governor-General may direct a Governor to take any steps which the Governor is required to take at his discretion, but this particular power of taking branches of the Government into his own hands is one which is not left to the Governor's discretion except in the particular case of a seditious conspiracy. Therefore the argument seems to break down on that point unless the noble Marquess can point to some other passages which close the gap. If he cannot, we may be in exactly the same position in future trouble as was the case with the Imperial Government in relation to the Government of the Cape 547 before the outbreak of the South African War when, for want of this very power, the military position was most gravely prejudiced. I shall not elaborate that further, but I would ask the noble Marquess if he can satisfy the House that this particular difficulty is met by the provisions of the Bill.
Page 28, line 36, after ("that") insert the said new paragraph.—(Lord Rankeillour.)
§ THE MARQUESS OF ZETLAND
My Lords, this is a question admittedly of great importance and one which your Lordships had an opportunity of discussing at some length in the course of the Committee stage. As a result of the discussion which then took place I gave an undertaking that I would go further into this matter since some noble Lords seemed to doubt whether the powers conferred upon the Governor-General and the Governors were adequate to meet the kind of threat against the frontier of India which they contemplated. I shall try to make it clear that the position is entirely safeguarded. I need not deal with the question of the Governor-General's discretion in dealing with defence questions. The noble Lord admitted that the Governor-General had complete discretion to decide what was, and was not, within the sphere of defence. I think the real difficulty which the noble Lord feels is with regard to the position of the Ministers. The noble Lord admits that the Governor-General, acting in his discretion, has not to consult his Ministers, but he points out, quite rightly, of course, that when he is acting on his individual judgment, or still more, when a Governor is acting upon his individual judgment, that means he has to act in consultation with his Ministers. That is quite true, though he has the power, of course, of disagreeing with the advice which his Ministers may give to him.
I think the fear at the back of the noble Lord's mind is that the Ministers may be dilatory, that the Governor of the North-West Frontier Province may consult them, and they will shilly-shally and delay giving advice, and so on. In that case surely, with an attack threatening upon the Frontier, the Governor will at once give orders. They may not be contrary to the advice of his Ministers, because, ex hypothesi, if his Ministers 548 have not given him any advice there will be no advice to go contrary to. But in those circumstances he surely would be able to issue any orders which were necessary. There are, however, further provisions in this Bill. Supposing that the Ministers acted in such a way as to prejudice the safety of the Frontier, the Governor-General would then take power under Clause 45 to take matters into his own hands and to issue Proclamations. For all practical purposes the running of the railways—I take them because that is a material consideration—will be in the hands of the Railway Authority, as is laid down by Clause 181, and the Governor-General can issue to the Railway Authority instructions on matters affecting his discretionary subjects and his special responsibility, and the Authority has to give effect to any instructions which he issues. That is to be found in Clause 183, subsection (4).
I come back to the Provinces. First of all the Governor has a special responsibility for securing the execution of orders issued by the Governor-General in his discretion under Part VI, Clause 52 (1) (g). The noble Lord is aware of that, and I need not read it. Under Clause 52 (3) the Governor exercises his individual judgment as to action taken under this special responsibility. There again he can act contrary to the advice of his Ministers. If noble Lords will turn to Clause 126, subsection (1), they will find it provides that the Provinces shall not impede or prejudice the authority of the Federation—that is to say, in the case of defence, the authority of the GovernorGeneral—and that the latter may give such directions as he considers necessary.
Clause 126 (3) makes special reference to the case of communications of military importance, and Clause 126 (5) gives the Governor-General in his discretion very wide powers to issue orders to the Governors in the case of a grave menace to peace or to tranquillity. Here again the Governor would, in the first instance at any rate, consult his Ministers, but there is a provision in the Provinces corresponding to the provision in the case of the Centre under Clause 93, giving the Governor the same power as is given to the Governor-General to issue Proclamations in case of necessity. In an emergency the subjects in the Provincial field can, at the Governor-General's discretion" be regulated by the Federation. That is 549 laid down by Clause 102. So far as the tribal area is concerned—and the tribal area would in all probability be the scene of the operations—the Governor-General may employ the Governor as his agent for any purpose, and in so acting the Governor acts not on his individual judgment but in his discretion.
I admit it is difficult to follow clause by clause all these various steps, but I have mentioned the clauses so that any of your Lordships who are sufficiently interested may refer to them at any time. But I have not been satisfied with my own interpretation of these clauses. I gave your Lordships an undertaking that I would look further into this matter and obtain the best opinion that I could. I have done so and the opinion which I have received from those who are, after all, primarily concerned with this matter—namely, the military advisers of the Governor-General himself—is that the powers conferred by the Bill as it stands are all that they require.
Let me also make this quite clear. I did request the Governor-General to put before them the very proposals which had been submitted to your Lordships in the course of the Committee stage and which are again submitted to your Lordships now. I did request him to put those proposals before them for their consideration, and their opinion has been given after considering these proposals. They have added one thing more—and I would venture to ask your Lordships really to bear this in mind, because I think in discussing all these matters we are in a little danger of losing sight of this aspect of the case—they added that in their opinion nothing would be likely to be more damaging than the insertion in the Bill of any provision which gave the Ministers in the North-West Frontier Province the impression that in the event of an attack upon the frontier they were not to be trusted. I seriously suggest to your Lordships that that is a consideration which you will be very well advised to bear in mind. After all, we are not treating India as a hostile country; we are treating India as a part of the British Empire; and it really is rather a monstrous assumption to make that in the case of an attack upon any of the frontiers of India the Ministers who are responsible for the administration of the Provinces attacked are going to behave 550 in such a way that they are going to make the task of the attackers easier. That really seems to me to be an unfair assumption.
When I informed your Lordships of the particular expression of opinion which had been given to me by military advisers to the Governor-General, I would say that I never put a consideration of that kind before them. I submitted for consideration the Amendments moved by noble Lords on the Committee stage, and I have now conveyed to your Lordships the result of my further inquiry. I hope that I have satisfied your Lordships that, in the best military opinion—and I need hardly say that the Governor-General concurs in the opinion of his military advisers—it would be far better to retain the Bill so far as this matter is concerned in its present form, rather than make the Amendment suggested.
§ LORD ISLINGTON
My Lords, if there is anything in the argument of the noble Marquess, it is that these questions should be kept rather ambiguous, that the matter should not be made clear, because if it be made clear then the Ministers will take offence. That is how I understand the argument of the noble Marquess. It is far too grave a subject to be regarded from this standpoint at all. If there is to be danger in the future under the working of this Constitution, one of the most likely dangers will be a so-called frontier trouble and especially one in the neighbourhood of the North West Frontier. The Amendment in the name of my noble friend and myself would make it quite clear what should be done. As far as I can gather the virtue of the proposal in the Bill is to make it obscure so that certain people shall not have their feelings hurt. That seems to me a mistake.
§ LORD RANKEILLOUR
My Lords, I confess I cannot follow the argument of the noble Viscount about want of trust in the Ministers. In this particular clause you are implying that in certain circumstances you cannot trust, perhaps the ability rather than the good will, of Ministers to deal with seditious conspiracy. That is on the face of the clause. Surely if that is so, it is no additional affront to be told that there should be some additional precaution in the case of the safety of the frontier. Take the illustration of the Cape Government. 551 Mr. Schreiner's Government were not disloyal, but by their dilatoriness and by the absence of power in the Imperial Government to take such powers as are now suggested into their own hands at the beginning of hostilities, the Imperial Government was gravely embarrassed. That is what I want clearly and unambiguously to prevent in this case. You may provide that the will of the Federal Government shall, in the end, prevail over the will of the Local Government, but that may take considerable time. What you need is clear emphatic power. There is power, it is true, but only if you declare a state of emergency under Clauses 45 or 93 implying a breakdown of the Constitution. But there will be no breakdown of the Constitution. It will be functioning normally. But danger will be creeping up from the frontier all the time. I suggest that instead of relying on one clause taken in conjunction with another in a sequence that it is impossible at the moment to follow, we should have one plain unambiguous power vested in the Governor for the protection of his Province against enemies from without, just as he has against enemies from within.
§ On Question, Amendment negatived.
§ THE EARL OF MANSFIELD moved to leave out "by the operations of any persons committing, or conspiring, or preparing or attempting to commit, crimes of violence which, in the opinion of the Governor, are intended to overthrow the Government by law established." The noble Earl said: My Lords, if your Lordships look at Clause 57 you will see that its object is to empower the Governor of a Province to take various functions to himself if, in his opinion, the peace or the tranquillity of the Province is endangered by the operations of any persons committing, or attempting to commit, crimes of violence for the purpose of overturning the law. It seems to us that it would be as well slightly to increase the Governor's powers. As the clause stands there may be very serious trouble taking place in a Province which could not, by any stretch of the imagination, be described at that particular moment as of a seditious nature. There might be rioting arising out of communal differences, or perhaps rioting arising from a famine or widespread pestilence. 552 Under those circumstances it would clearly seem advisable that the Governor should have power to act before he had definite information that a seditious movement was on foot, as no doubt he would have a very good idea that such a movement would come into being as soon as the condition of his Province, or possibly of a neighbouring Province, became sufficiently disturbed to lead political undesirables to think they had sufficient prospect of success to justify a rising. That is why I suggest that the Governor should have these increased powers.
Page 38, line 27, leave out from ("endangered") to the first ("the") in line 31.—(The Earl of Mansfield.)
§ THE MARQUESS OF ZETLAND
My Lords, this is also a proposal which, if I remember aright, we discussed at some length in Committee. We really seem to be having the Committee stage all over again. I am afraid I can only give the same reply as I gave before. This would be a very serious inroad into the responsibilities of the Ministers for the maintenance of law and the preservation of order. It is quite true, as the noble Earl pointed out, that this clause does Provide that in certain very special circumstances the Governor shall have the special power of taking over a Department of Government or, if he found it necessary, more than one Department. But those circumstances are of a peculiar nature, and they are really almost entirely concerned with what is called the terrorist movement in Bengal. As members of the Joint Select Committee know full well there are special difficulties in the case of Bengal in leaving responsible Ministers in certain circumstances to deal with terrorism. I do not want to enlarge upon that particular theme, but as I said in Committee I regret that I cannot agree that this Amendment is necessary. I really think it would make the most unjustifiable inroad on the responsibilities of responsible Ministers.
§ THE MARQUESS OF SALISBURY
My Lords, I am very sorry my noble friend should think that we are merely repeating what has been done in Committee. There is very considerable impatience in your Lordships' House when there is repetition on the Report stage of what was done in Committee, and I would like to remind my noble friend that, as a matter 553 of fact, he did promise to consider this question between Committee and the Report stage. I admit that he was very reluctant to do so, but he did say—for the reason, I remember, that he was good enough to act upon my advice—that he would consider the possibility—
§ TEE MARQUESS OF ZETLAND
I am sorry if I am under a misapprehension. I thought it was on the defence clause that I said that, in response to the noble Marquess's suggestion, I would reconsider the matter. That was my recollection.
§ THE MARQUESS OF SALISBURY
My noble friend has a much better memory than I have, but at the, same time I think that if he looks, he will find that he is in error in that case. The real point is this. The question of disorder is the gravest of all the questions in India. I do not mean to say that the question of law and order ought to be removed from the purview of the responsible Ministers. That was never even suggested by the Minority in the Joint Select Committee, but we did think on that occasion that the granting of the power of law and order to the responsible Governments ought to be much more limited than the Majority thought, and of course the Government have followed the view of the Majority. I do not complain of that, but the Majority did make, this great concession in the Joint Committee: that in an extreme case of subversive agitation, then the Governor might take into his own hands any of the Departments of the Government. That, of course, really meant primarily the Departments connected with Law and Order, although it was not specified that they should only he the Departments of Law and Order.
What we have tried to consider, those of us who are anxious about the possible effects of this Bill, is whether that is sufficient. We are satisfied that the limiting words, that it must be subversive agitation intended to overthrow the Government, are too strict a limit. You only have to look at what is going on in India at this moment. Look at the incident in Lahore which we have seen in the last few days, and which is, I am sorry to say, still going on. That is a case of very profound disorder. The foundations of law and order are evidently shaking in Lahore, but there is, so far as 554 I am aware, no effort whatever to overthrow the Government. The subversive effort is not intended to overthrow the Government; the subversive effort is to overthrow the protection of the minority. It is a struggle between the Sikhs and the Moslems. I have no special knowledge of this question whatever; I only judge from what I read in the public Press. It is a struggle between the Sikhs and the Moslems, and the struggle has reached such a point that the ordinary resources of police have proved wholly insufficient; white troops have had to be used. Not only that, but I think I am right in saying that the Governor of the Province himself had to break off his holiday and come back to Lahore, and other members of the Government who, according to the usual practice in India, have been in the hills have all had to come back in order to cope with the situation.
The thing was very grave; it was profoundly shaking the foundations of law and order, but there was no intention directly to subvert. the Government, That was not the point; the point was that the Sikhs wanted to overthrow the Moslems and the Moslems wanted to overthrow the Sikhs, and the efforts of the Governor and of the white troops have, I suppose, been directed to protecting the minority. Supposing, after this Bill becomes law, that this incident were to recur, the Governor would have no power under this clause to assume authority over the various Departments of Law and Order. If it be said by my noble friend that if we look through the Bill and all the provisions as to special responsibilities we may find some provisions which may indirectly subserve the very purpose we want, then our reply is: "Yes, but why in this particular case, as the clause stands—namely, where the agitation is intended to subvert the Government—should an exception be made and a special provision inserted? Why should it not be extended to these other cases which, though perhaps not quite so important, are yet a very grave matter?" That is the argument. I should have thought my noble friend would have seen how serious it is.
I must tell your Lordships quite gravely how deeply this question of law and order is felt by us. I have recently heard from a very high source in India 555 of the condition of law and order there. I admit that what my informant has. told me was directed mainly to terrorism of the type to which my noble friend the Secretary of State has just referred, the terrorism which is intended ultimately to subvert the Government, but he drew a picture of the subversive discontent in Bengal which was most alarming. It was all, as far as I could make out, starting again, the old, old trouble, as it has done over and over again, as anybody who has read the return which was presented to the Joint Select Committee will know. We think that the Government ought to make a step forward in this respect. It is not suggested by my noble friend who moved the Amendment that Law and Order should be taken away from the responsible Government. This is a very moderate proposal indeed. All it is suggesting is that, when very grave disorder takes place, then the Governor should be able to take into his hands the departments of the Government even if technically the disorder is not actually directed to subverting the established Government. I hope my noble friend will consider this matter.
THE MARQUESS OF DUFFERIN AND AVA
My Lords, I should first like to ask the noble Marquess to make the point quite clear, whether the whole of these arguments is not entirely covered in Clause 52 (1) (a), which deals with the Governor's special responsibilities: "the prevention of any grave menace to the peace or tranquillity of the Province or any part thereof." I listened very carefully to the noble Marquess, and I could not hear any argument which he adduced which was not entirely covered by that special responsibility.
§ THE MARQUESS OF SALISBURY
My Lords, my first answer is, why is the provision inserted in Clause 57 at all, if Clause 52 is sufficient? As he says, why is this provision about taking over the Departments of the Government made in Clause 57 at all? Evidently there is an extreme case where it is necessary to go further. We are suggesting that that extreme case is not the only case. There is another extreme case—namely, the case we have submitted, which I venture to suggest to the House. The vague powers of the special responsibility clause are weak from their generality. You have to put yourself in the position of the Governor. He has to say to himself: "Now, what ought I to do? I am Governor of (let us say) Lahore; here are the Moslems and the Sikhs engaged in a life-and-death struggle; what ought I to do? I should like to take the Departments into my own hands under the special responsibility clause." That is what he would say, and that is what my noble friend did say. But then he would say: "I can hardly do that, because I see that by Clause 57 I can only do that when the agitation is going to subvert the Constitution." The very fact that in the clause we are discussing it is provided in the case of attempting to subvert the Constitution, is an indication to the Governor that he ought not to do it in any other case. That is always the difficulty, and why I think it ought to be extended.
§ On Question, Whether the words proposed to be left out shall stand part of the clause?
§ Their Lordships divided: Contents, 73; Not-Contents, 23.557
|Hailsham, V. (L. Chancellor.)||Jellicoe, E.||Arnold, L.|
|Lichfield, E.||Ashton of Hyde, L.|
|Vane, E. (M. Londonderry.) (L. Privy Seal)||Lucan, E. [Teller.]||Bayford, L.|
|Minto, E.||Bingley, L.|
|Mount Edgcumbe, E.||Clanwilliam, L. (E. Clanwilliam.)|
|Northumberland, D.||Munster, E.|
|Peel, E.||Clwyd, L.|
|Dufferin and Ava, M.||Plymouth, E.||Cromwell, L.|
|Linlithgow, M.||Powis, E.||Denman, L.|
|Reading, M.||Sandwich, E.||Desborough, L.|
|Zetland, M.||Scarbrough, E.||Elphinstone, L.|
|Airlie, E.||Falmouth, V.||Erskine, L.|
|Balfour, E.||Goschen, V.||Faringdon, L.|
|Bathurst, E.||Mersey, V.||Gage, L. (V. Gage.) [Teller.]|
|Bradford, E.||Ullswater, V.||Gainford, L.|
|Feversham, E.||Gorell, L.|
|Graham, E. (D. Montrose.)||Aberdare, L.||Greville, L.|
|Iveagh, E.||Annaly, L.||Hampton, L.|
|Hardinge of Penshurst, L.||Mendip, L. (V. Clifden.)||Sandhurst, L.|
|Hastings, L.||Meston, L.||Seaton, L.|
|Hirst, L.||Mildmay of Flete, I.||Snell, L.|
|Howard of Glossop, L.||Polwarth, L.||Stanmore, L.|
|Hutchison of Montrose, L.||Ponsonby of Shulbrede, L.||Stonehaven, L.|
|Ker, L. (M. Lothian.)||Rennell, L.||Strathcona and Mount Royal, L.|
|Lamington, L.||St. Levan, L.|
|Marks, L.||Sanderson, L.||Templemore, L.|
|Aberdeen and Temair, M.||FitzAlan of Derwent, V.||Fairfax of Cameron, L.|
|Salisbury, M.||Hereford, V.||Islington, L.|
|Effingham, E.||Exeter, L. Bp.||Middleton, L.|
|Grey, E.||Monkswell, L.|
|Mansfield, E.||Carnock, L.||Mount Temple, L.|
|Morton, E.||Conway of Allington, L.||Oxenfoord, L. (E. Stair.)|
|Selborne, E.||Darcy (de Knayth), L. [Teller.]||Rankeillour, L.|
|Bertie of Thame, V. [Teller.]|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Amendment disagreed to accordingly.
§ Clause 60:
§ Constitution of Provincial Legislatures.
§ 60.—(1) There shall for every Province be a Provincial Legislature which shall consist of His Majesty, represented by the Governor, and—
- (a) in the Provinces of Madras, Bombay, Bengal, the United Provinces, Bihar and Assam, two Chambers;
- (b) in other Provinces, one Chamber.
§ EARL PEEL moved, in paragraph (a) in subsection (1), after "United Provinces," to insert "the Punjab." The noble Earl said: My Lords, this Amendment is of course intended to deal with the question of a Second Chamber in the Punjab. When the matter was discussed in Committee the noble Marquess told us that Moslem feeling had been very strongly against any Second Chamber in the Punjab, but he was good enough to say that he would make inquiries from the Government of India as to whether there had been any recent change in the attitude of the Moslems towards the setting up of a Second Chamber. I move this Amendment in order to give him an opportunity of informing your Lordships of the result of his consultation with the Government of India.
Page 40, line 25, after ("Provinces") insert ("the Punjab").—(Earl Peel.)
§ THE MARQUESS OF ZETLAND
My Lords, of course the noble Earl is quite correct when he says that this Amendment is put down in order to enable me to inform your Lordships of the result of 558 the further inquiry which I made with regard to the feeling in the Punjab in connection with the Second Chamber. Actually I should imagine that in another place this Amendment would be out of order, because the House actually divided on it and decided against it.
§ THE MARQUESS OF ZETLAND
Well, I am wrong there. But your Lordships did actually divide on this Amendment and decide against the Second Chamber for the Punjab. The result of my inquiries is to show that the feeling in the Punjab is still rather widespread against a Second Chamber. I do not say that there are not individuals, and perhaps here and there small classes of people, who, on the whole, might like a Second Chamber. I think there are. But the considered opinion of the Governor of the Punjab, Sir Herbert Emerson, is that the situation has not changed in any material respect, and his advice is against the establishment of a Second Chamber in the Province at the present time.
§ Amendment, by leave, withdrawn.
§ Clause 61:
§ Composition, of Chambers of Provincial Legislatures.
§ 61.—(1) The composition of the Chamber or Chambers of the Legislature of a Province shall be such as is specified in relation to that Province in the Fifth Schedule to this Act.559
§ LORD RANKEILLOUR moved, at the end of subsection (1), to insert "and the provisions with regard to the qualifications for the elections in the territorial constituencies mentioned in paragraphs 5 and 8 of that Schedule shall be those set forth in the Sixth Schedule to this Act." The noble Lord said: My Lords, this Amendment is intended to correct what I think will be agreed to be a solecism, if not an impropriety in drafting. Usually the enacting words of a Bill ought to be found in the text of the clauses, and if it is intended to expand it, that is found in the Schedule. But in this Bill you will find the Sixth Schedule is set up by the Fifth, and it would require a great deal of research to find anything that set up the Sixth Schedule at all. I submit that it is a grave impropriety for one Schedule to beget another, and the issue must really be regarded as being illegitimate. In order to put matters as they should be I move this Amendment.
Page 40, line 36, at end insert the said words.—(Lord Rankeillour.)
§ THE LORD CHANCELLOR
My Lords, I have been asked to reply to this Amendment. I am very sorry to give any distress to my noble friend and his purism in matters of drafting, but unfortunately those who are advising the Government, who, after all, have some little experience in drafting, are satisfied that their method is correct and that his is incorrect. In the first place, the noble Lord will see that if he were to move his Amendment and to leave the rest of the Bill as printed, it would have the consequential absurdity that you leave in the provisions as to the Sixth Schedule twice over, because, although he says that it requires great ingenuity to find any reference to the Sixth Schedule, if he studies the Fifth Schedule he will find in paragraph 9:The provisions of the Sixth Schedule to this Act shall have effect with respect to the persons who are entitled to vote at elections in the territorial constituencies mentioned in paragraphs five and eight of this Schedule.So there is the provision which brings in the Sixth Schedule.
My noble friend says it is unusual to have a reference in one Schedule to another. I will not cross swords with him, with his wide experience, as to whether it is unusual, but I submit that my noble 560 friend will not find any statement anywhere that is incorrect. And indeed it shows, I think, the artificiality of the distinction that his objection would be completely met if, instead of calling the Sixth Schedule, as we do, the Sixth Schedule, we called it Part II of the Fifth Schedule. Really, one sees that there is not very much substance in an objection which can be met as simply as that. In fact, if we were to make the Amendment which is suggested, we should then bring in in Clause 61 references to such matters as territorial constituencies and so on, which are far more appropriately dealt with in the Fifth Schedule, where they belong, than in the clauses of the Bill, where they do not belong. In these circumstances the Government are advised that the method adopted in the Bill is the preferable one, and I do not think my noble friend will feel that the dispute between us is sufficiently serious to press it very much further.
§ LORD RANKEILLOUR
My Lords, I agree with the Lord Chancellor, if by "correct" he means that it does not invalidate the effect of the Bill. That may be, but if he means by "correct" that it is in accordance with usage, I venture, with great humility, to differ from him. Apart from the matter of usage, it surely is wrong if you have to search the small print of a long Schedule in order to find anything that gives life to the next Schedule. However, after what my noble friend has said with regard to the consequential Amendments, I realise that the Government have got much too far into the bog for my humble efforts to pull them out. I beg leave to withdraw.
§ Amendment, by leave, withdrawn.
§ Clause 63 [Right of Governor to address, and send messages to, Chambers]:
Page 41, line 32, after ("Legislature") insert ("whether with respect to a Bill then pending in the Legislature or otherwise").—(The Marquess of Zetland.)
§ Clause 64 [Rights of Ministers as respects Chambers]:561
Page 41, line 36, after ("Minister") insert ("and the Advocate-General").(Lord Hastings.)
§ Clause 68 [Vacation of Seats]:
Page 44, line 3, after ("Governor") insert ("exercising his individual judgment").
Page 44, line 11, after ("Province") insert ("exercising his individual judgment").—(The Marquess of Zetland.)
§ Clause 83:
§ Provisions with respect to certain educational grants.
§ 83.—(1) If in the last complete financial year before the commencement of this Part of this Act a grant for the benefit of the Anglo-Indian and European communities or either of them was included in the grants made in any Province for education, then in each subsequent financial year, not being a year in which the Provincial Legislative Assembly otherwise resolve by a majority which includes at least three-fourths of the members of the Assembly, a grant shall be made for the benefit of the said community or communities not less in amount than the average of the grants made for its or their benefit in the ten financial years ending on the thirty-first day of March, nineteen hundred and thirty-three:
§ LORD LLOYD moved, in subsection (1), after "them" ["or either of them"] to insert "as defined in the First Schedule, Part 1, paragraph 24." The noble Lord said: My Lords, I must apologise to my noble friend for the short notice he has had of this manuscript Amendment, but I was only informed of the need of it a very short time ago. It is little more than a drafting Amendment, inasmuch as its object is to ensure that the moneys provided for in Clause 83 do, in effect, reach, and reach only, those people for whom they are intended. I think it is clear what the intention of Clause 83 is that these moneys should be for the benefit of the Anglo-Indians and European communities, and anyone who studies the Report of the Hartog Sub-Committee of the Indian Statutory Commission, or of the Joint Select Committee's Report, paragraph 321, will come clearly to the conclusion that these moneys were intended solely for Anglo-Indian and European children. 562 The reason why I have put forward this Amendment is that it has come to my knowledge only recently that in certain parts of India efforts have lately been made to admit into Anglo-Indian and European schools the issue of marriages between Indian fathers and European or Anglo-Indian mothers. That makes a very serious difference in the situation. I do not think that the Anglo-Indian community would claim, neither certainly would the European community claim, any superiority over any other community. It is not that. But they do claim a right of communal identity, and where a specific protection has been accorded to the children of any community, it is only natural that they should decline to deprive those children of it by sharing the privilege with others who are outside the community.
§ The definition of "an Anglo-Indian" has been made very clear by the Joint Select Committee., and it is made clear in paragraph 24 of Part I of the First Schedule, which is referred to in this Amendment. It is true that that is only a definition of "an Anglo-Indian" for franchise purposes, but the definition of "an Anglo-Indian" for other purposes has been most clearly laid down. From a legal point of view the identity of an Anglo-Indian is clearly defined in the Criminal Procedure Code, which specifies where an Anglo-Indian may claim the right to have a British jury. If his father or grandfather is of European descent, then he may claim it. It is the same thing here; it is always through the male line. It is generally accepted everywhere that where a child is legitimate it is through the male parentage that he claims his nationality, his general civic rights, or whatever it may be. I will give your Lordships another proof: for auxiliary defence purposes he is enlisted as a British subject through the father, not through the mother. I shall be corrected if I am wrong, but I think that broadly speaking it is the universal law that a legitimate child claims its father's nationality.
§ If the education protection which is found in Clause 83 of the Bill is intended, as I claim that it is, only for the Anglo-Indian and European communities, then I think this ought to be, made quite clear beyond, any doubt, and it could be made clear by inserting the definition of "an 563 Anglo-Indian" as accepted for franchise and all other purposes in India, in the words of my Amendment. I have had evidence that the Anglo-Indian and European communities feel very strongly on this matter. The number of marriages of Indian men and European women is increasing very rapidly and very largely. These matters are a little delicate, but your Lordships may ask: "What is really the difference? They both have European blood in them, so why should one have greater privileges in protection than the other?" There are many reasons. First of all, the child of a European father takes on the habits, the circumstances, the surroundings, the connections and the relationships of its father more than those of its mother. But where paternal rule is observed—and for all I know it may be one of the reasons why it is observed—you avoid in India the religious difficulties.
If the procedure is reversed and the children of an Indian father are to be classed as Anglo-Indians and admitted to the protection of the community of Europeans and Anglo-Indians for scholastic and educational purposes, then you are going to get in that community Moslem children and Hindu children. Where the Indian father is a Moslem, the child is practically always a Moslem, and where the Indian father is a Hindu you will probably find that the child will be made a member of the Brahmo Samaj or some Hindu sect. That is going to create enormous difficulties and is going to deprive the Anglo-Indian and European communities of just that form and quality of protection which is desired and which is provided in the Bill. I do not want to detain your Lordships with a prolonged argument on this question. I hope I have made it clear. I am informed that ever since the time when European education was separated from Indian education, the identity of the European and Anglo-Indian communities has been recognised, but always on the lines which, as I think, are clearly intended in the Bill, were clearly intended by the Joint Select Committee, and were clearly intended by the Hartog Sub-Committee, and in fact by everybody who has examined this question. I hope the noble Marquess will have no difficulty in accepting my Amendment, and I very much regret that I have given him such short notice of it. I beg to move.564
Page 53, line 19, after ("them") insert ("as defined in the First Schedule. Part I, paragraph 24").—(Lord Lloyd.)
§ THE MARQUESS OF ZETLAND
My Lords, I admit that I would have liked a little more time to consider this proposal. The noble Lord's proposal would exclude, I understand, the children of Indian fathers and English mothers from the benefits which are provided for the Anglo-Indian community under Clause 83. The point is certainly very largely a new one. I am told that it was not raised in the proceedings of the Sub-Committee of the Third Round-Table Conference which dealt with the question of Anglo-Indian and European education. I think that in this case it would really be very much better to leave the decision as to who is to receive the benefits provided by this clause to administrative decision. I think the Governor-General or the Governor can be very well trusted to come to a just and reasonable decision in a case of this kind, and it would certainly be his duty, under his special responsibilities, to consider the claims both of the issue who were Anglo-Indians according to the accepted definition for electoral purposes and the issue of Indian and English parents who were not classed as Anglo-Indians for electoral purposes. I rather hope that the noble Lord will agree that it should be left to the Governor-General and the Governors for administrative decision, bearing in mind also that the Secretary of State can make his wishes felt in the event of its being found necessary to make any suggestions to the Governor-General and the Governors in respect of this matter.
§ LORD LLOYD
My Lords, I am sorry my noble friend has given me absolutely no single reason why these words should not be inserted. He has merely suggested that the matter should be left to the Governor-General, like, alas! so many other things. Whenever there is a difficulty, everything is left to the Governor-General or the Governor. Why should we not have these words in? They are going to give solace and comfort and a sense of security to a very important, though small, but very distressed community. I honestly think the noble Marquess should have told us what the particular objection was. He has given us no explanation at all. It is only fair 565 to the community that they should know why they are to be left in a position of great jeopardy. We know there is pressure in certain quarters so that the children of Indian fathers should share the benefits which it is perfectly clear from Clause 83 are intended. I have quoted the Hartog Committee and one authority after another to show quite clearly what the intention is.
My noble friend does not deny for a moment that that is the intention. He merely says, "Leave it to the Governor-General." Why leave it to the Governor-General? Why not make your intention clear He might say "I do not want this to happen. I want the children of Indian fathers to have the same privilege as the others." At any rate, that would be an answer, at least a reply, but no reply has been given. I do press most respectfully for the sake of the community, who feel very strongly about this, that we should be told why this Amendment cannot be accepted. It is merely to give effect to the intention that seems to have guided all those who have examined this question.
§ THE MARQUESS OF ZETLAND
My Lords, I shall certainly look into this matter further as the noble Lord wishes. But, as he knows, this Amendment has come at the last moment. My own impression is that it will not make very much difference to the community, because the grants will be in proportion to the population.
§ THE MARQUESS OF SALISBURY
Do I understand that my noble friend will consider the matter? Of course he will have another opportunity on the Third Reading of putting in an Amendment if he wishes.
§ LORD LLOYD
My Lords, I apologise to the noble Marquess for the lateness of the Amendment, but if the noble Marquess will look into the matter I shall be very grateful, and would ask leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 93 [Power of Governor to issue Proclamations]:566
Page 62, line 32, leave out ("continue to have effect notwithstanding the revocation or expiration of the Proclamation") and insert ("subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the Proclamation ceases to have effect, unless sooner repealed or re-enacted by Act of the appropriate Legislature;"),—(The Marquess of Zetland.)
§ THE EARL OF MANSFIELD had given Notice of a new clause relating to Customs duties and taxes on goods after Clause 110. The noble Earl said: My Lords, in view of the fairly full discussion on this point on the Committee stage, I do not propose to move my Amendment, but I would express the pious hope that the Government will watch very closely the interests of British trade in India.
§ THE MARQUESS OF ZETLAND moved, after Clause 116, to insert the following new clause:
§ ".The foregoing provisions of this Chapter shall apply in relation to any ordinance, order, by-law, rule or regulation passed or made after the passing of this Act and having by virtue of any existing Indian law, or of any law of the Federal or any Provincial Legislature, the force of law as they apply in relation to Federal and Provincial laws, but, save as aforesaid, nothing in those provisions shall affect the operation of any existing Indian law."
§ The noble Marquess said: My Lords, this is very largely a drafting Amendment. The proposal to insert this new clause is associated with the later Amendment which stands in my name to leave out Clause 121. The reason for the Amendment is that Clause 121 really applies to the earlier clauses up to and including Clause 116, but not to the clauses which follow Clause LK In these circumstances it is desirable it should find its place immediately after Clause 116.
§ Amendment moved—
§ After Clause 116, insert the said new clause.—(The Marquess of Zetland.)
§ Clause 121 [Savings and interpretation]:
§ THE MARQUESS OF ZETLAND moved to leave out Clause 121. The noble Marquess said: My Lords, this Amendment is consequential.567
Leave out Clause 121.—(The Marquess of Zetland.)
§ Clause 145:
§ Expenses of the Crown in connection with Indian States.
§ 145. There shall be paid to His Majesty by the Federation in each year the sums stated by His Majesty's Representative for the exercise of the functions of the Crown in its relations with Indian States to be required for the discharge of those functions, including the making of any payments in respect of any customary allowances to members of the family or servants of any former Ruler of any territories in India.
§ THE MARQUESS OF ZETLAND moved, after "required," to insert "whether on revenue account or otherwise." The noble Marquess said: My Lords, the object of this Amendment is to make it quite plain that the payments for State purposes which this clause is intended to cover includes grants of capital sums on loan as well as payments out of revenue. It may well be there will be occasions when loans will be required by non-Federated States, and it is essential therefore to ensure that the Governor-General, in his capacity as His Majesty's Representative in relation to the States, has the power to grant such loans.
Page 98, line 17, at end insert ("whether on revenue account or otherwise").—(The Marquess of Zetland.)
§ Clause 147:
§ Remission, of States Contributions.
§ (6) In this chapter "privilege or immunity" means any such right, privilege, advantage or immunity of a financial character as is hereinafter mentioned, that is to say—
- (a) rights, privileges or advantages in respect of, or connected with, the levying of sea customs or the production and sale of untaxed salt;
- (b) sums receivable in respect of the abandonment or surrender of the right to levy internal customs duties, or to produce or manufacture salt, or to tax salt or other commodities or goods in transit, or sums receivable in lieu of grants of free salt;
THE MARQUESS OF ZETLAND moved, in subsection (6), after paragraph (b) to insert:
(c) the annual value to the Ruler of any privilege or territory granted in respect or the abandonment or surrender of any such right as is mentioned in the last preceding paragraph.
§ The noble Marquess said: My Lords, this is little more than a drafting Amendment. The Government of India have pointed out that the wording of paragraphs (a) and (b) of Clause 147 (6) does, not entirely meet one or two special cases of privileges or immunities enjoyed by particular States, one State in question being Khairpur, which has a right to purchase duty-free so much British Indian salt as is required for consumption in the State itself, this privilege having been given in return for the State's abstaining from producing salt itself. Again, certain States in the Punjab were given grants of land many years ago in return for giving up Customs and Transit duties. The new paragraph, slightly expanding the wording of paragraphs (a) and (b), is intended to meet these cases.
Page 98, line 31, at end insert the said paragraph.—(The Marquess of Zetland.)
§ Clause 160 [Provisions as to Customs duties, on India-Burma trade):
Page 103, line 11, leave out ("in Council may") and insert ("may by Order in Council"').—(The Marquess of Zetland.)
§ Clause 161:
§ Cessation of borrowing by Secretary of State in Council.
§ 161. Upon the commencement of Part III of this Act all powers vested in the Secretary of State in Council of borrowing on the security of the revenues of India shall cease and determine, but nothing in this section affects the provisions of Part XIII of this Act with respect to borrowing in sterling by the Secretary of State.
LORD LLOYD had given Notice of an Amendment to leave out "but" and insert:
§ The noble Lord said: My Lords, I do not desire to move this Amendment. I have to thank my noble friend the Secretary of State for a letter which, he has sent clarifying many of these difficult points. I would only just make this observation, that it does seem to me the Governor-General's power to borrow is definitely limited. If he cannot borrow a sufficient amount he would have to pass an Act on his own authority. He has powers to do it, but it is a biggish procedure. Supposing his own Government placed a limit on the amount he could borrow, he could only extricate himself from that position by passing an Act himself. If that is so, it is all very cumbrous and unsatisfactory. However, I have no wish to press the matter further, and I thank my noble friend for the long and interesting explanation ho gave upon this and kindred points. I do not move the Amendment.
§ Clause 163:
§ Borrowing by Provincial Governments.
§ (2) The Federation may, subject to such conditions, if any, as it may think fit to impose, make loans to or give guarantees in respect of loans raised by, any Province and any sums required for the purpose of making loans to a Province shall be charged on the revenues of the Federation.
LORD RANKEILLOUR had down an Amendment to insert after subsection (1):
(2) Notwithstanding anything in the preceding subsection, it at any time there are not sufficient moneys in the hands of the executive authority of the Province to enable payments to be punctually made in respect of any liability which falls to be met out of the revenues of the Province, the Governor in his discretion may borrow on the; security of the revenue of the Province such sums as are necessary to enable such payments as aforesaid to be punctually made.
§ The noble Lord said: My Lords, I think this is really covered by the communication which the noble Marquess was good enough to make to me. I rather gathered from what he said before that he proposed to publish the provision enabling 570 the Governor-General and the Governor to borrow, so that everyone might understand it. If that is his intention still, I will not move this Amendment.
§ THE MARQUESS OF ZETLAND
Yes. The noble Lord was good enough to say he had no objection to my doing so, and therefore I propose to do so.
§ THE MARQUESS OF ZETLAND moved, after "make loans to, or," to insert "so long as any limits fixed under the last preceding section are not exceeded." The noble Marquess said: This Amendment, and the one which follows it on the Paper to Clause 164, make clear what I understand was open to some doubt in the original draft, that any guarantees given by the Federation in respect of loans raised by Provinces or Federated States are to be reckoned in determining the total amount of guarantees given by the Federation for the purpose of any limit on the total of guarantees which may be fixed by the Federal Legislature under Clause 162. I beg to move.
Page 104, line 2, at end, insert ("so long as any limits fixed under the last preceding section are not exceeded").—(The Marquess of Zetland.)
§ Clause 164 [Loans by Federal Government to Federated State]:
§ THK MARQUESS OF ZETLAND
My Lords, I have already explained my Amendment on this clause. I beg to move.
Page 104, line 31, after ("or") insert ("so long as any limits fixed under the last but one preceding section are not exceeded").—(The Marquess of Zetland.)
§ Clause 172:
§ Vesting of lands and buildings.
§ 172.—(1) All lands and buildings which immediately before the commencement of Part III of this Act were vested in His Majesty for the purposes of the government of India shall as from that date—
- (a) in the case of lands and buildings which are situate in a Province, vest in His Majesty for the purposes of the government of that Province unless they were then used, otherwise than under a tenancy agreement between the Governor-General in Council and the Government of that Province, for purposes which thereafter will be purposes of the Federal
571 Government or of His Majesty's Representative for the exercise of the functions of the Crown in its relations with Indian States.
THE MARQUESS OF ZETLAND moved to insert at the end of paragraph (a) in subsection (1):
or unless they are lands and buildings formerly used for such purposes as aforesaid, or intended or formerly intended to be so used, and are certified by the Governor-General in Council or, as the case may be, His Majesty's Representative, to have been retained for future use for such purposes, or to have been retained temporarily for the purpose of more advantageous disposal by sale or otherwise.
§ The noble Marquess said: My Lords, the clause as it stands provides in effect that lands and buildings which are situated in the Province shall be made over to the Province from the commencement of Part III of the Act unless they are being used immediately before that date for Central purposes. The Government of India have pointed out that there are certain military lands in Bombay which are being treated as the property of the Central Government but which the local Government has agreed to sell or dispose of as the agents of the Central Government, crediting the proceeds to Central revenues. These properties, however, are not actually being used for Central purposes within the meaning of the subsection as it stands, and, consequently, they would pass to the Province without any safeguard for the existing financial arrangements unless a specific provision were made. That is the reason for the Amendment. I beg to move.
Page 109, line 13, at end insert the said words.—(The Marquess of Zetland.)
§ Clause 181 [Executive authority in respect of railways to be exercised by Federal Railway Authority]:
Page 118, line 15, leave out ("The Authority, in exercising the powers referred to in this subsection") and insert ("Provided that as respects their powers under this section the Authority").—(The Marquess of Zetland.)
THE MARQUESS OF ZETLAND moved to insert at the end of subsection (3):
So much of Part X of this Act as provides that powers in relation to railways services of the Federation shall be exercised by the Authority shall not apply in relation to officers of the Federal Government employed in the performance of any of the functions mentioned in this subsection.
§ The noble Marquess said: My Lords, Clause 241 of the Bill gives the Railway Authority control over the personnel of the railway services. The purpose of my Amendment is to secure that the officers employed in connection with the safety of the railways, which it is the purpose of subsection (3) to make clear, is a function to be controlled by the Federal Government itself, and not by the Railway Authority. The officers are to remain under the control of the Federal Government, and not to be treated as railway servants for the purposes of Clause 241.
Page 118, line 31 at end insert the said paragraph.—(The Marquess of Zetland.)
§ Clause 195 [Construction and reconstruction of railways]:
§ THE MARQUESS OF ZETLAND
My Lords, the Amendment in my name on this clause is drafting. I beg to move.
Page 125, line 23, leave out from ("proposal") to end of clause.—(The Marquess of Zetland.)
§ THE MARQUESS OF ZETLAND moved, after Clause 197, to insert the following new clause:
§ Railways in Indian States which, have not federated.
§ ".If and in so far as His Majesty's representative for the exercise of the functions of the Crown in its relations with Indian States may entrust to the Authority the performance of any functions in relation to railways in an Indian State which is not a Federated State, the Authority shall undertake the performance of the se functions."
§ The noble Marquess said: My Lords, this clause is in fact a part of the building up which has been necessitated by the closer examination of Clause 293, and the Amendments to be moved to that clause. The purpose is to make it clear that in the case of the railways in non-Federated States the Crown's representative can 573 utilise the agency of the Railway Authority just as at present the Government of India uses the agency of the Railway Board for the exercise of its functions in relation to railways. I beg to move.
After Clause 197 insert the said new clause—(The Marquess of Zetland.)
§ Clause 241:
§ Application of preceding section to railway services, and officials of courts.
§ 241.—(1) In its application to appointments to, and to persons serving in, the railway services of the Federation, the last preceding section shall have effect as if for any reference to the Governor-General in paragraph (a) of subsection. (1), in paragraph (a) of subsection (2) and in subsection (5) there were substituted a reference to the Federal Railway Authority.
§ (2) In framing rules for the regulation of recruitment to superior railway posts the Federal Railway Authority shall consult the Federal Public Service Commission, and in the recruitment of officers generally shall give effect to any instructions which may be issued by the Governor-General for the purpose of securing, so far as practicable to each community in India a fair representation in the railway services of the Federation, hut, save as aforesaid, it shall not be obligatory on the Authority to consult with, or otherwise avail themselves of the services of, the Federal Public Service Commission.
§ Loan LLOYD moved, in subsection (2), to leave out "the recruitment of officers generally" and insert "recruitment to such posts and in recruitment generally for railway purposes shall have due regard to the past association of the Anglo-Indian community with railway services in India and." The noble Lord said: My Lords this is an Amendment which I believe will have the sympathy of all your Lordships' House, for it is moved in consideration of the difficult situation of the Anglo-Indian community. Prior to Indianisation—your Lordships know very well the general policy of Indianisation—the Anglo-Indian community held the majority of the important key positions in the posts and railways in India. They were at, once very adversely affected by the general policy of Indianisation. They were further gravely affected—proportionately, I think, far more affected than any other community—by the retrenchments and the cuts in pay. It was a community that could afford the weight and difficulty caused by retrenchment less well than any other community. The head of 574 the Anglo-Indian community in India, Sir Henry Gidney, put in a Memorandum to the Joint Select Committee on behalf of that community; but before that the general situation as regards the future of the Anglo-Indian community had been agreed upon, first of all by the First Round-Table, Conference, which made a special recommendation in regard to the employment of this community, and then there was the well-known Government of India Resolution of July, 1934, which made very definite recommendations.
As I shall have to refer to them again I should like to remind your Lordships what they were. They said:
The Anglo-Indian and domiciled European community at present holds 8.8 per cent., of the subordinate posts on the rail-way.
They went on to say:
This total percentage will be obtained by fixing a separate percentage (i) for each railway having regard to the number of members of this community at present employed, (ii) for each branch or department of the railway service "—
here are the operative words to which I want to call your Lordships' attention—
so as to ensure that Anglo-Indians continue to be employed in those branches in which they are at present principally employed, e.g., the Mechanical Engineering, Civil Engineering and Traffic Departments".
That was the considered recommendation of the Government of India and that recommendation was endorsed in very striking language in paragraph 321 of the Joint Select Committee's Report.
I do not think I need apologise for reading part of that paragraph. It says:
We have enquired whether any additional provision in the Constitution Act is desirable in order to secure to a very small community, which has established a strong claim to consideration by its history and its record of public service, the maintenance of the special position in some of the Public Services which it has won by its own efforts.
You could not have a finer tribute or testimony than that contained in those words. The paragraph goes on:
We recall that the Services Sub-Committee of the First Round-Table Conference recommended that special consideration should be given to the claims of this community for employment in the services; and we have noted with satisfaction the resolution of the Home Department of the Government of India, dated July 4"—
that is the one I have just read—
announcing new rules for the determination and improvement of the representation of minorities in the Public Services In accordance with this resolution the claims of Anglo-Indians and domiciled Europeans who at present obtain rather more than 9 per cent., of the Indian vacancies in the gazetted railway posts, for which recruitment is made on an All-India basis, will be considered when and if their share fails below 9 per cent., while 8 per cent, of the railway subordinate posts filled by direct recruitment will be reserved for AngloIndians and domiciled Europeans.
The paragraph concludes with this sentence:
It would, of course, be incumbent on the Governor-General and Governors, in the discharge of their special responsibility for the legitimate interests of minorities, to see that no change was made in the percentages prescribed in the above mentioned resolution without their approval.
Therefore it is perfectly plain that not only were prescribed percentages of posts to be reserved for this community, but, what is even more important, they were to be kept in the same class of employment. Sir Henry Gidney, the head of the community, made most moderate demands on behalf of the community. He felt all along—I have had conversations with him—that it was unwise to make extravagant demands which could be criticised as being partisan. All he was seeking was fair treatment and a safe future for his community in the positions they then occupied. In another place some of my friends pointed out at some length, and with arguments which were very hard to refute, their grave anxiety lest the percentages suggested would not in practice be long upheld. They expressed their fear that Anglo-Indians very soon would, perhaps gradually but certainly, be turned out of their posts once Indians had control of the Government. Those fears were scouted in another place by the Under-Secretary of State. Mr. Butler replied that there was no need for fear, or words to that effect. He endorsed the Government of India provisions and therefore the recommendation of the Joint Select Committee; and he said:
I am going to try and tell the Committee now how we propose to give practical effect to that particular rule, and I presume, therefore, to meet the wishes of the community that definite posts will be reserved broadly in proportion to those which the community at present hold.
Therefore he was careful to point out that it was not only the percentage but
the class of employment of which they were not to be deprived.
§ The then Secretary of State, Sir Samuel Hoare, pointed out that this percentage was a minimum figure and not a maximum figure. I will not read out all that he said. It is to be found in column 571 of the House of Commons OFFICIAL REPORT of April 4. What do we find to-day? If my information is true, already these men are losing their posts. I wish it had been possible to table my Amendment in stronger terms which would give in more effective language protection to this community, but I could not table it in other terms. If, however, these words were accepted they would at any rate do something. I would like to give your Lordships a few examples of what is happening under the East Indian Railway Order of April 25, 1935. The Anglo-Indian community hitherto have occupied out of the total number of railway guards, for instance 524, or 44 per cent., and they have occupied out of 105 posts on the control staff fifty-two, or practically 50 per cent. In transportation power they have occupied out of 2,200 appointments no fewer than 546 posts as firemen, shunters and locomotive drivers or something like 25 per cent. Out of appointments in the locomotive sheds as inspectors, boilermakers, fitters and trade apprentices, they have occupied 94 per cent of the appointments. So I could go on down the list. In the mechanical department, which is of vital importance to the running of the railways, there have been 342 Anglo-Indians out of 607 mechanics In the civil engineering department 55 per cent., have been AngloIndians.
§ I do not want to weary your Lordships with figures, but it is necessary to give some illustration of the enormously important part this community has played in the running of the railways in the past. I hope my noble friend will be able to contradict what I am now going to say, but I am given to understand that the Director-General has recommended the Home Member of the Government of India, and the Home Member has agreed, that instead of maintaining the future recruitment of AngloIndians in the existing percentages of which I have given you a sketch, the position is to be very nearly reversed. Broadly speaking, what is happening already is that the percentage recommended by the Joint Select Committee, 577 about 8 or 9 per cent., is now going to be dealt with by a general distribution of 10 per cent., in every Department, therefore reducing the effective value and influence of this community in the Railway and Postal Departments by scattering them amongst all the minor jobs—a really hostile distribution of the community into partly useless, or at any rate very subordinate, jobs.
§ That was not the spirit in which the Joint Select Committee made their Report, and that was not the spirit of the Government of India Report. It was intended not only that they should have their percentage agreed upon, but also that they should be maintained in the class, kind, category and rank of job which they had held hitherto. I hope that my noble friend will be able to contradict the information I have just given your Lordships and which I have had on very good authority, and be able to assure us that, in spirit and in letter, this community is being maintained for future recruitment, for the class of work and for the percentage that they have had before.
§ If not worse, then nearly as bad, is their situation as regards pay. The drastic character of the reductions in pay of this community has only to be stated to be realised. It is obvious—I need not remind your Lordships—that the standard of living of Europeans and of Anglo-Indians is different; I only say "higher" in the sense that the standard of Anglo-Indians is more expensive than that of Indians. Whereas Anglo-Indian firemen were recruited on the basis of 80 rupees rising to 120 in five years, they are now going to be reduced to 30 rupees rising to 50. I will not go right through; here is a case of shunters who have been reduced from 140 rupees to 70 rupees; drivers from 160 rupees to 140 rupees, and drivers of the third grade from 260 rupees to 170 rupees. That runs right through the Traffic Departments.
§ I do not want to detain your Lordships at this hour of the evening with a wearisome account of the calamities which are befalling this community already, except to make the most earnest plea I can on their behalf. When it comes to a distinction being made which is of value to the Government, there is no hesitation in making it. Although they are to be put virtually on an equal rate of pay with 578 the Indians, yet certainly, no one can be admitted into the railway service—and I think this also applies to the postal service—unless he is willing to join the Auxiliary Force and serve as a soldier. That condition is not made for the Indians. Whenever the Government have had to ask from the Anglo-Indian community some still further proof of their loyalty and devotion, there has never been any hesitation OR their part in acceding to the request. Who stood by us in the general strike in Bombay on the railway, and during the Amritsar disturbances? I have the bitterest memories of those anxious days and nights, and the noble Marquess also knows something about them, and other noble Lords experienced those troubles. I remember the days when all the telegraph staff up the lines who were not Anglo-Indians were tapping out Congress and disloyal messages to one another, paralysing the railways, spreading the strike, leaving the Anglo-Indians alone to do their best in great danger.
§ Many of them, or at least some of them, fell at their posts. This is the community from whom you make every demand: that they should join the Auxiliary Force, that they should stand by us; and whom you penalise. This is the community who are going to be scattered among the minor classes and taken away from their jobs. They are a small community, but they are utterly vital to our existence in India. No community outside them is of such vital importance, certainly strategically and in some ways also politically, as the Anglo-Indian community. It will be a very bad day for this country and for law and order in India if the Anglo-Indian community is driven under, scattered and broken up. [Perhaps we shall be told again that we can leave the fate of this community to the Governor-General. Believe me—I have had a good deal of experience of this—you cannot do that safely. It is a creeping danger. There will be no moment when the Governor-General or the Governor will have a particular case upon which he can act. It will be a gradual erosion of their position. Just as you cannot march an army down a street for some small disturbance, because it would be no use for that purpose, so the Governor-General will be no use here. It will be by gradual erosion of power, by a slow process of 579 elimination and reduction, that the Anglo-Indian community will be ousted from their position, and the Governor-General will never have a case important enough on which to base strong action by his Ministers. To leave the fate of this community to the Governor-General under his special responsibility for minorities is to abandon it once and for all. If that is what is going to be done, let us make up our minds to it and have no self-deception about it. That is what will happen, and nothing else at all.
§ In another place there was not a. single person on any Bench who did not plead for this Anglo-Indian community. What did Sir Austen Chamberlain say? He said that when we went to India we did not find the Anglo-Indian community, we created it; that therefore they are of our blood and we must protect them. The protection to-day, if it is already happening, is not enough. What has been done is not sufficient. I beg your Lordships to protect them, if only in memory of their wonderful past services, and of the great sacrifices they made for us in the War. There was no community who fought better for us in different parts of the world: they served in Mesopotamia; in Basra, up the lines of communication, in the line. No community had a better record than the Anglo-Indian community. Surely they deserve better at our hands than this scurvy treatment, which is nothing less than to leave them at the mercy of the new Constitution without adequate protection.
§ If I have spoken a little strongly, it is because I feel very deeply about this community. We did create them; they are our own blood: they are the result of our civilisation there. I am sure that if the most reverend Primate were here—and I wish he were here—he could not but respond to my appeal. No more disgraceful act would blot the record of any country than if, when we made this great fundamental change, we forgot all about the people who, without our protection and our aid, will certainly be submerged. I for one should be indeed ashamed if we left them in such a position. I hope that the noble Marquess to-day will be able to give us a very clear assurance that in practice they will be protected, not only by such dispositions as have been made in view of the dangerous experiences they are already 580 suffering, but also by inserting the words I propose.
Page 147, line 25, leave out ("the recruitment of officers generally") and insert ("recruitment to such posts and in recruitment generally for railway purposes shall have due regard to the past association of the Anglo-Indian community with railway services in India and").—(Lord Lloyd.)
§ LORD HARDINGE OF PENSHURST
My Lords, I wish only to say a few words after the very eloquent appeal to which we have listened from my noble friend Lord Lloyd. The Anglo-Indian community is one in which I have always taken the greatest interest. All of us here must remember that they have always stood by us in all our difficult moments in India, beginning from the time of the Mutiny, when they rendered remarkable service to our country when we were in a very difficult position. It is a community for which we Britons are directly responsible. Our nation is directly responsible for their existence. It is a responsibility which we should not ignore. During the sittings of the Joint Select Committee the question of this Anglo-Indian community was brought up and discussed at considerable length, and I think it was very largely owing to the discussions that took place in the Committee that the Resolution of July 4 of last year was taken by the Government of India.
That Resolution satisfied the Committee to a very large extent, as may be seen from the Report of the Select Committee. At the same time, we pressed that a special reference should be included in the Instrument of Instructions describing the percentages, and at the same time we stated in our Report that it should be the duty of the Governor-General, and of the Governors of the Provinces, to see that the percentages prescribed in the Resolution of July 4 should be maintained. When the Bill was published, as also the Instrument of Instructions, I was rather disappointed to find that no special reference was made to the position of the Anglo-India community in either the Bill or the Instrument of Instructions, and I really think, in view of the fact that at the present time it is fairly clear that the position of the Anglo-Indians in India is being slowly but gradually whittled down, that some wording—I do not say exactly in 581 the words of the Amendment, but some words—should be inserted in the Bill, more or less in the sense of Lord Lloyd's Amendment, and I hope that it may be possible for the Secretary of State to give some promise to that effect.
§ LORD HUTCHISON OF MONTROSE
My Lords, before the Secretary of State replies to the very eloquent speech of Lord Lloyd, as one who has for long had the interests of the Anglo-Indian community at heart—in the Joint Select Committee we did all we could to see that their position was safeguarded, and I would just like to correct Lord Hardinge by pointing out that the Anglo-Indians are referred to in Clause 83 in dealing with the grants for education, but otherwise they are not referred to—I think this Amendment- is really very necessary, because I am sure it is the intention of this country that we shall stand by these people, for whom we are responsible. Moreover, in the matter of defence, I might point out that they are of the very greatest value to our Defence Services in India. In the case of a general strike, which might easily occur for political purposes in India, they would undoubtedly stand by the British, as they always have done, and therefore from that point of view they should be encouraged to keep the percentage they now have in the railway services of tile future. Anything we can do to safeguard their position I think we should do. I, for one, who have been a consistent supporter of the Bill, really think that we ought to support the Amendment, and say that these people, to whom we owe so much, should be safeguarded.
§ LORD LAMINGTON
My Lords, knowing something about this community, I can warmly support the Amendment, and I trust that the Government will see fit to accept it.
My Lords, I feel that I should like to say one word with regard to this Amendment. I went through a strike in India, and I cannot forget the debt of gratitude which the whole Province owed to the AngloIndians. The engine drivers, who were nearly always Anglo-Indians, were shot at most days during the strike, and there was not one single engine driver or fireman who did not carry out his duty. Feeling as I do that we owe such a debt 582 of gratitude to them, I think that the Government ought to do something to safeguard them.
§ THE MARQUESS OF ZETLAND
My Lords, nobody has more sympathy for the community which is referred to in this Amendment than I have, and indeed I think the sympathy with them, and with the position in which they find themselves, may be said to be universal. With regard to the complaints to which the noble Lord who moved this Amendment referred, I am having them referred to the Government of India, and I hope that I shall shortly receive a reply to my representations. I have asked for a report on the complaints which have been made. I am not quite sure whether the words which the noble Lord proposes will really have the effect which we desire. Clause 241, subsection (2), deals with the framing of rules for the regulation of recruitment to superior railway posts, and says that the Federal Railway Authority shall consult the Federal Public Service Coin-mission, and in the recruitment of officers generally shall give effect to any instructions which may be issued by the Governor-General for the purpose of securing, so far as practicable, to each community in India a fair representation in the Railway Services of the Federation.
The noble Lord would propose to insert into that clause these words. He would leave out the words "the recruitment of officers generally" and insert insteadrecruitment to such posts and in recruitment generally for railway purposes shall have due regard to the past association of the Anglo-Indian community with railway services in India and.The effect of that certainly is to call to the attention of the Federal Public Services Commission the past services of the Anglo-Indian community in connection with the railways. Is the noble Lord quite sure—I myself am a little doubtful—that that really would be to the advantage of the Anglo-Indian community? It is to single them out as one community for the special attention of the Federal Public Services Commission. I am doubtful because I think it might create prejudice against them. I know the noble Lord does not agree, but let us remember what the intention of the remainder of that clause is. The intention of the remainder of that clause is to make it clear that the Federal Public Services Commission shall give effect to any instructions 583 which may be issued by the Governor-General for the purpose of securing, so far as practicable, to each community in India a fair representation in the Railway Services of the Federation. I do not want to rule out altogether the words which the noble Lord wishes to insert, but I would like him to consider it from that point of view—whether by singling out this one community for the special attention of the Federal Public Services Commission you may not create prejudice which would be to their disadvantage in the future.
Having said that, just let me point out the steps which are being taken, and are proposed to be taken, for safeguarding the interests of this particular community. I think it was the noble Lord, Lord Hardinge, who referred to the Resolution of the Government of India of July 4 last year, which Resolution dealt specifically with the position of the AngloIndians in the Railway Services. The Government of India issued that Resolution, laying down their policy with regard to the recruitment of the members of this community to the Railway Services. We propose, of course, to secure the effect of that Resolution by a paragraph in the Instrument of Instructions to the Governor-General, which it is proposed should read in some such words as these:Further, Our Governor-General shall interpret the said special responsibility"—that is, the special responsibility for the interests of minorities—as requiring him to secure a due proportion of appointments in Our Services to the several communities, and he shall be guided in this regard by the accepted policy prevailing before the issue of these Our Instructions"—that is to say, the policy referred to in the Resolution of the Government of India of July 4, 1934—unless he is fully satisfied that modification of that policy is essential in the interests of the communities affected or of the welfare of the public.The intention of that part of the Instructions is to see that the policy which has been accepted with regard to the employment of Anglo-Indians on the railways should be carried out. And though, as I said, I do not altogether rule out the words of the noble Lord's Amendment, I am really a little apprehensive that it may not have the effect which he intends. If the noble Lord is agreeable, I will turn those words over in my mind 584 and I will consider them further, for I can assure the noble Lord that the Government have every intention of carrying out the undertakings which they have given to the Anglo-Indian community. If the noble Lord would himself think over what I have said under that head—namely, whether the actual insertion of these words might not have an undesired effect, I on my part would say that I am perfectly prepared to give further consideration to them, or possibly to consider other words which might be better designed to achieve the object which we desire.
§ LORD LLOYD
My Lords, I am very grateful to my noble friend for his sympathetic tone on this vitally important matter. I say at once that the suggestion he has made is important, especially what he has told us about the Instrument of Instructions. I do not think I share his anxiety about these words. I thought them out very carefully. My noble friend has suggested that they might make for prejudice. Well, we must speak quite frankly in a matter of this kind. There is a prejudice now. The words will not increase it. If that prejudice is allowed to operate it will destroy the community! I do not For a moment think that these words, by virtue of the fact that they mention one community—after all, this is a clause about them—would do the damage which my noble friend thinks conceivably might ensue. He dwelt on the words "fair representation." Well, those words would still remain in the clause if my Amendment were accepted. Who is going to say what is fair representation in ten years time? Men's minds move with an altered situation. We do not know what kind of Viceroy we shall have ten years hence. We do not know from what Party he will come—though I believe that on this question every Party would be united. I believe everybody equally wants to give a fair deal to this community.
I do not quite know what to say. I think I should feel it very difficult to reject the sympathetic reply made by my noble friend. At the same time, I do not want there to be any risk at all of missing the necessary safeguards to this community. I believe all noble Lords feel like that. If my noble friend would himself suggest better words for this purpose—for I believe we have a unity of 585 purpose in this matter—I should be very glad. At his request I will think over words. I said at the beginning I did not think mine were very strong. Perhaps better words could be found. If my noble friend would give us an assurance, as I understand he does, of very sympathetic consideration on Third Reading of something which will not weaken their position but strengthen it still further, I think I should be wrong to press the Amendment in these circumstances. If that is the correct interpretation of the noble Marquess's statement, namely, that on Third Reading we should have something statutory which would strengthen the position of this community still further in the future, I should not press the matter.
§ THE MARQUESS OF SALISBURY
My Lords, I can only say that I think my noble friend will be very well advised not to press the matter at this moment. Nothing could have been more sympathetic than the Secretary of State's reply. He not only promised to consider this matter in reference to the Instrument of Instructions, but he also promised to consider the actual words proposed. Everybody who knows your Lordships' House can have no doubt whatever that the feeling of your Lordships' House was very strongly in favour of something being done in this matter. What I understand my noble friend the Secretary of State to say is that between now and Third Reading he will give that consideration which he is much better qualified to give than anybody else, and that he will, if he possibly can, meet my noble friend. I have no doubt that my noble friend himself will put down an Amendment on the Third Reading, not out of hostility to the Government but because, as my noble friend the Secretary of State is aware, nothing can be clone on Third Reading except on Notice. On those terms I am sure that my noble friend would like to leave the matter in the hands of the Secretary of State.
§ Amendment, by leave, withdrawn.
§ Clause 246:
§ Conditions of service, pensions, &c. of persons recruited by Secretary of State.
§ (2) Any promotion of any person appointed to a Civil Service or a civil post 586 by the Secretary of State shall, if he is serving in connection with the affairs of the Federation, he made by the Governor-General exercising his individual judgment and, if he is serving in connection with the affairs of a Province, be made by the Governor exercising his individual judgment.
§ THE EARL OF MANSFIELD moved, in subsection (2), after "State," to insert "or any order relating to leave of not less than three months of any such person or any order suspending any such person from office." The noble Earl said: My Lords, the noble Lords in whose names this Amendment stands have asked me to move it on their behalf. Its purpose is to bring under the direct control of the Governor questions relating to leave for an extended period and also the suspension of civil servants upon whose appointments, transfers, and promotions the Governor already exercises supreme power. This request has, I think, already been refused in another place, but we are of opinion that the Amendment is a very important one and that the reason given in the past for not accepting it cannot be characterised as other than trivial.
§ The first of those reasons was that these civil servants will be protected by the rules to be laid down in accordance with the first part of Clause 246. The answer to that is that while we have every confidence in rules which the Secretary of State may make, we have slightly less confidence in the application of those rules by Indian Ministers. A great deal of the legal troubles of this world arise not from bad laws but from bad interpretations and bad carrying out of good laws. The second argument adduced against us in another place was that the Governor would be perpetually bothered by persons seeking week-end leave and leave for similar short periods. That also falls, as by our Amendment we do not ask for this provision to affect periods of leave of less than three months.
§ I think it is commonplace that our civil servants in India do need the somewhat extended periods of leave which they receive as a rule every three or four years, and which is really vitally necessary to enable them to maintain their health and mental vigour. If they are not to have any direct recourse to the Governor save by the cumbersome method of petition should their request for extended leave be refused, I think that that 587 may work very great injustice; because there come in the lives of many people certain crises, and many of these civil servants may well wish to leave India for this country because of urgent private affairs or the severe illness of some one near and dear to them. If they are refused that leave and their only method of redress is the cumbersome one of petitioning the Governor, it may well be that if and when the Governor reverses the decision of the Minister it will be too late to do any good to the applicant.
§ Then we come to the second part of the Amendment, which is to deal with the suspension of these officials. We would respectfully suggest that it is neither right nor wise that responsible officials can be suspended by Indian Ministers without appeal to the Governor. If the clause is left as it is the effect may well be that a Minister out of pure contrariness or personal spite may suspend a high official several times, which would be bad for that man's reputation, although he may afterwards be vindicated. At the same time there are even graver disadvantages from the public point of view. If an Indian Minister, again either from spite or for some deeper or more sinister reason, suspends, say, a high police official because he has, with complete justification, ordered his troops to fire upon the Minister's home village, it may well be that there is no other man equally competent to take over in the place of him who has been suspended, which in its turn may lead to civil disorder of a serious kind. For those reasons, my Lords, in the interests both of the Service itself and of whatever Province may be affected, I hope the Secretary of State will show himself in accommodating mood, and I accordingly beg to move.
Page 151, line 2, after ("State") insert ("or any order relating to leave of not less than three months of any such person or any order suspending any such person from office").—(The Earl of Mansfield.)
§ THE MARQUESS OF ZETLAND
My Lords, this question is not by any means a new one. The noble Earl who moved this Amendment seeks to place upon the shoulders of the Governor the task of deciding upon the leave which the officers serving in the Provinces—those officers at any rate who have been appointed by the Secretary of State—desire to enjoy. I myself think that that would be rather 588 difficult to work in practice. I have many recollections of cases of this kind during my Governorship in Bengal. What invariably happened—because this was the only practical way of dealing with the matter—was that the heads of Departments or Secretaries to Government put up the proposals for leave amongst the officers in their Departments and they were submitted by the Chief Secretary, if I remember rightly, to the Governor. The arrangements were always agreed as a formality, because the officers who made the proposals for leave—the heads of Departments and Secretaries to Government—were really the only people who knew who amongst those serving under them were entitled to leave and who were not, and so on.
I think you are going to put a great burden upon the Governors of the Provinces if you are going to make them responsible for all these leave arrangements. I think the only case in which I ever differed from any of those who put up leave programmes to me was when an officer who thought that he had been hardly treated appealed to me. Frankly I do not now remember what my eventual decision in the case was, but it involved a question between two officers as to which of the two was most entitled to leave, it being the fact that the two could not be spared at the same time; it was something of that kind.
Under the proposals of the Bill, as I think the noble Earl pointed out, the officers are given the right of appeal to the Governor in any case in which they feel that they have a grievance. Under Clause 247 (1) they have the right of appeal to the Governor, and of course if an appeal were made to the Governor he would naturally call for all the papers connected with the particular issue, go through them, and give his eventual decision on the merits of the case. That is as I see it. With regard to suspensions I think that in the main the same arguments apply. It was suggested to me by someone that it would be very hard if an officer suffered financial loss owing to a suspension, but the possibility of injustice being inflicted on an officer under that head has already been dealt with by Clause 246 (3), which noble Lords will see reads as follows: 589If any such person as aforesaid is suspended from office, his remuneration shall not during the period of his suspension be reduced except to such extent, if any, as may be directed by the Governor-General exercising his individual judgment or, as the case may be, by the Governor exercising his individual judgment.So that the officer there is protected from arty injustice in connection with the stoppage of his pay in the case of suspension. It may happen that a suspension has to be made, if it is to le effective, at great speed. If all these matters were to be submitted to the Governor first, considerable administrative inconvenience might be caused.
That is the position with regard to leave and suspension as I see it. I am certainly most anxious that the members of these Services, who have rendered such great service to India and who are continuing, and I am sure will continue, to render great service to India, should have absolutely fair treatment. Though I certainly prefer the arrangements as they at present stand in the Bill, if noble Lords were to press me very hard on this question, I should feel that I might have to give way to them.
§ THE MARQUESS OF SALISBURY
My Lords, I am very much encouraged by the kindly words of the noble Marquess at the end of his speech to suggest to him that it would be wise if he made this concession. After all, I think everybody, whatever view he takes of this Bill, must be convinced that the position of civil servants, after the Bill becomes an Act, is one of great anxiety. No one can doubt, whatever view he takes of the necessity for this measure, that the position of the civil servants will be very anxious. They are going to pass from direct control in this country under the control of responsible Ministers. Responsible Ministers may be all that the noble Marquess hopes and believes they are likely to be, but no one can doubt the anxiety of 'the civil servants, and any one who reads their Memorandum—I am referring to the one laid before Parliament—must see that that is so. I have reason to know that they attribute the very greatest importance to this Amendment, and they are most anxious it should be carried. Of all the Civil Service amendments which are on the Paper, this is the one which most of all they desire. They contend that this power of suspension and power 590 of refusing leave may act in a very formidable way on them. After all, when a man is suspended for some time there is a slur upon him which it is very difficult for him to survive.
It may convince your Lordships that it is no mere special view of those in your Lordships' House who have acted together in this matter, if I quote no less an authority than a present Cabinet Minister who recently became a Cabinet Minister, a very great friend of mine, Lord Eustace Percy. Lord Eustace Percy, while in "a position of greater freedom and less responsibility," to use well-known words, urged an Amendment very much on these lines in another place. At least I believe he did; I hope I am not slandering him. He represented that it followed from the authority which appointed a civil servant that that authority, or somebody acting on behalf of that authority, should be the person to deal with these questions of suspension and leave. We are not contending that the Secretary of State should be asked to deal with every case, but we do think it is only reasonable that the Government should have the control. I very much urge that my noble friend should make this concession, and I hope he will.
§ THE MARQUESS OF ZETLAND
My Lords, the noble Marquess has really been so persuasive in his appeal that I feel I must fall in with his request.
THE EARL OF MANSFIELD
My Lords, may I be allowed to offer the noble Marquess my most sincere thanks?
§ LORD MIDDLETON moved, after Clause 249, to insert the following new clause:
§ Compensation for premature retirement.
§ "—(1) Any person mentioned in subsection (1) and subsection (2) of the last preceding section, shall be entitled, upon not less than three months' notice given by him to the Secretary of State, to retire prematurely from service on such terms as to pension, gratuities, and the like, as may be prescribed by rules made by the Secretary of State under the provisions of the next two succeeding subsections
§ (2) The Secretary of State shall make rules prescribing the terms as to pensions, gratuities, and the like payable to or in respect of any person retiring from service under the provisions of the last preceding subsection:591
§ Provided that, as far as may be, such terms shall be the same as and in no case shall be less favourable to such person as aforesaid than the terms prescribed by the premature retirement rules made by the Secretary of State in Council under paragraph (b) of Section ninety-six B of the Government of India Act.
§ The said rules shall provide that in addition to any pension, gratuity, or the like similar to those provided for by the said premature retirement rules, there shall also be payable to any such person as aforesaid as compensation for the loss of his career a special gratuity calculated on a scale to be determined by the Secretary of State and set out in the said rules.
§ The said rules shall further provide that if any person referred to in subsection (1) of this section is required by competent authority to retire prematurely from service for any reason other than proved misconduct or incapacity there shall be payable to such person as compensation for the loss of his career a special gratuity calculated on a scale to be determined by the Secretary of State and set out in. the said rules:
§ Provided that the amount of the special gratuity payable to any person under this section shall not be less than twice the amount of the special gratuity which would have been payable to such person under the last preceding subsection if such person had voluntarily retired.
§ (5) The provisions of subsection (3) of the section of this Act, of which the marginal note is Reserved posts ' shall apply to any rules made under this section."
§ The noble Lord said: My Lords, on behalf of my noble friend Lord Lloyd, I have been asked to move this Amendment. I trust that this Amendment, to which British as well as Indian officials in India attach immense importance, may be accepted. Your Lordships will observe that the Amendment is really divided into -two parts. Firstly, there is the question of premature voluntary retirement on proportionate pension; and, secondly, there is the amount of gratuity in addition to any such pension. I do not think I need dwell at great length on the first point, which is the right to retire pre-maturely on proportionate pension, since the Government have admitted the justice and propriety of the principle by promising to deal with it in rules which will be made by the Secretary of State. The right to retire voluntarily on proportionate pension was extended, under authority of the India Office communiqué of March 18 last, to all British officers who were recruited by the Secretary of State up to the inauguration of the new Constitution, and under paragraph 71 of the White Paper extended to all such 592 British officers until the transfer of the Services, if indeed they are transferred. The Secretary of State will provide for this matter under rules which will be published by him. I think that a study of the proceedings in another place of May 3 last will show that I have stated the Government's intention accurately, if briefly. The only question at issue is whether this right should receive statutory authority, or be left to the discretion of the Secretary of State.
§ The request that the right should be confirmed by Statute was contained in the Memorial which was submitted to the Secretary of State by members of the Indian Civil Service in Bengal. This was endorsed later by the Indian Civil Service in the whole of India and by the Indian Police there. It can be stated that it fairly represents the considered views of the Security Services in India. Were it possible to hope that the noble Marquess, Lord Zetland, will remain permanently in his present office, the Amendment might indeed be considered unnecessary, but it is felt in the Services that the future is very uncertain and they cannot rely on the same sympathy being extended to them of which they feel quite sure at the present moment. Surely it is not unreasonable to request that a matter of such importance, second only to the matter of pensions in the eyes of officials in India, should receive statutory authority and should not be left to rules which are liable to alteration by the Secretary of State without any reference to Parliament? I ask what objection there could be to embodying in the Bill what the Government admit to be right and proper in rules which are to be made? That is how the matters stands in regard to British officers who are appointed by the Secretary of State.
§ But there is another class appointed under the same authority who will fare very differently. I refer to Indian officers. In spite of the special request on this point in the Bengal Memorial they are to receive no such consideration. The Memorial requests that the right should be confirmed by Statute to every member of the Service whatever his race or domicile. It also draws attention to the fact that Indian officers have the same or even greater reason for apprehension from activities against terrorism and civil disobedience than British officers have. It 593 was stated in another place that the Government declined to accede to this request because they stood by the decision arrived at by the Lee Commission. I would like to point out to your Lordships that the decision of that Commission was given without any discussion or argument, merely by placing the word "British" before the words "officers entitled to proportionate pension." There was a case of one member of the Indian Civil Service, an Indian, who was granted a proportionate pension from Burma before 1924. It is true that he cancelled his retirement, but the fact remains that the right was accorded to him.
§ Indian officers appointed before 1st April, 1924, enjoy the right to retire voluntarily on a proportionate pension, and those appointed subsequently do not, and they regard this distinction as being an arbitrary one. General Sir Alfred Knox pointed out in another place that to Indian officers, who are exposed to even more bitter enmity when they have to take drastic action in dealing with revolutionary or communal disturbances, there is the greater need for the right to retire, and I suggest to your Lordships that something in common fairness ought to be done about it. The Indian officers attach very great importance to this matter, and they keenly resent the present arbitrary differentiation. They are more vulnerable than British officers, because they get injured indirectly by the oppression of their relatives. I appeal with great confidence to the noble Marquess, Lord Zetland. I am sure that he could, if he wished, testify to the loyal service of Indian officers during his successful governorship of Bengal, and I trust he will do something to remedy what is obviously an injustice.
§ The second part of the Amendment, which I will deal with quite briefly, relates to the question of the grant of gratuities in addition to proportionate pensions. The Government have admitted the justice of the principle in the case of compulsory retirement except, of course, for misconduct or incapacity. The Amendment seeks to give to the Secretary of State power to award a gratuity on voluntary retirement as well. The present Bill introduces great changes in India, and it may well be that officers recruited under existing conditions may in future find that the position has be come for them quite impossible. They 594 may, indeed, be compelled to apply for permission to retire prematurely on proportionate pension. Though such retirement may nominally be voluntary, it is really indistinguishable from compulsory retirement. In such cases the grant of a gratuity is only fair, especially when it is remembered how low is the scale of proportionate pension s for officers other than members of the Indian Civil Service. Such officers, after thirteen years service in India, receive £330 per year as against £618 to the members of the Indian Civil Service. In the latter case the gratuity may not be unnecessary, but in the former it may be most essential.
§ Though the Amendment requests that the Secretary of State should have power to grant a gratuity for voluntary retirement, still a distinction is drawn between voluntary retirement and officially compulsory retirement, for in the latter case the request is that a gratuity should be double what it would be in the former. This seems to be fair and reasonable, for a compulsory retirement is almost always a greater hardship than a voluntary one, however forced and inevitable the latter may be. To sum up this portion of the Amendment, it seeks to include the principle of the grant of gratuities within the Act. It seeks to enable the Secretary of State to have power to grant gratuities for voluntary as well as for compulsory retirement, the amount in the latter case to be double that of the former. The scale of gratuities will be determined by rules made by the Secretary of State, and it will be left to his discretion to determine the precise circumstances under which gratuities shall be granted in the case of voluntary retirement. I beg to commend the Amendment as a whole for your Lordships' consideration, and I earnestly request the noble Marquess, Lord Zetland, to deal with a question, upon which British and Indian officers feel very strongly, with as much sympathy as possible.
After Clause 249 insert the said new clause.—(Lord Middleton.)
§ THE SECRETARY OF STATE FOR WAR (VISCOUNT HALIFAX)
My Lords, the Amendment that has been moved by my noble friend is one of those that naturally command a great deal of sympathy in all quarters of the House, inasmuch as the intention of it is to 595 improve and make more secure the rewards or the compensations of a class of public servant to whom all of us in all quarters of the House recognise that we owe much, and the noble Lord has moved it in terms of great reasonableness and with every effort to make what is, he will admit, a rather complicated subject reasonably clear. There is one point, perhaps, which I may take first arising out of what he said, or which is implied in what he said, on which he argued, if understood him correctly, in favour of including in the Statute what otherwise it might be proposed, and is proposed indeed, to include in statutory rules. I should rather deprecate that being done, partly because I think it is unnecessary and partly because I think that it would he undesirable, unless you went further and included in the Statute a large number of other provisions dealing with all other sorts of pensions.
I believe it to be unnecessary because, as he will be aware, these rules have to be published, and if and when they are published, and if any objection is taken to them, it is always possible for him or any other noble Lord to raise the matter in this House and have it ventilated. As I say I believe it to be undesirable if we bear in mind the provisions in 'Clause 309 which deals with pensions. If the noble Lord refers to that he will see that the definition is extremely wide and includes every sort of pension, gratuity, provident fund payments and the rest. I think there is general agreement in the House that the other provisions of the Bill in Clauses 246, 271 and so on are adequate to secure that these compensations and gratuities and so on are in fact made payable by the appropriate authority. Therefore, as regards that point I should be reluctant to make any alteration in the Bill.
With regard to the question of proportionate pension on premature retirement that question, as the noble Lord said, falls into two halves. There is the question of compulsory premature retirement and there is the question of voluntary premature retirement. In regard to premature compulsory retirement it is extremely difficult, I think, to generalise about the cases we might expect to arise. Obviously there might be cases of premature compulsory retirement arising from inefficiency or misconduct which the 596 Amendment would not seek to cover, and there might be some arising from economic causes, redundancy of posts or the like. I think the noble Lord will find it extremely difficult to throw those classes of cases into such shape as would be suitable for general treatment as he and I might do in regard to cases of premature voluntary retirement which might take place and perhaps would take place because of the general effect of certain political changes. With regard, therefore, to cases of compulsory retirement, I venture with great respect to say that it is extremely difficult to generalise, and I think we must be content to see them treated under the powers of Clauses 247 and 248, by which, if any officer is forced into compulsory retirement, he has, I would suggest, ample security against unjust treatment by the provision in the Bill enabling the Governor-General in the first instance and the Secretary of State later to hear a complaint, adjudicate upon it and award such compensation as in all the circumstances may be considered fair. Indeed I can conceive cases in which under this provision by such treatment an individual might be enabled to get more generous treatment than under the noble Lord's Amendment.
With regard to voluntary retirement the noble Lord referred, I think, to the present scheme of premature retirement and the degree to which it had been extended by the scheme that was published, if I remember aright, in March, 1933. The effect of that scheme was to bring in people who had been recruited after January 1, 1920, and who were then ineligible. The body of rules governing the question is already in existence and it is proposed to add to those rules rules incorporating that extension that was published in March, 1933, under which when the Constitution in India is inaugurated officers appointed by the Secretary of State and recruited before the Constitution is inaugurated will be eligible to retire at any time during the remainder of their service, subject to certain conditions with which perhaps at this stage it is not necessary to trouble your Lordships. Retiring pensions will be calculated in general proportion to the ultimate pension, but there is of course a difference between the noble Lord and the position of the Government as I am endeavouring to state it, in that 597 he proposes that people who retire should receive a gratuity and the Government scheme does not make that provision.
On that I have only to make two or three observations. The first is that no proportionate scheme—and this is no new business—has ever included a gratuity, and the Indian system of pay is not and never has been based on that system of the inclusion of gratuity, so that of course there is no gratuity attached to ordinary pensions. There again it would be quite possible in any case of hardship for Clause 248 to be invoked by the Secretary of State by which he is enabled to give such compensation as he may consider just and equitable. The general observation I would make is this—and I think it will appeal to every one of your Lordships—that we must be concerned to secure a double object. We wish to secure justice for members of the Service who may for whatever reason find their task in India difficult or in their judgment impossible. On the other hand we are equally concerned, and ought to be equally concerned, to secure for India as good a quality of service and servants as we can in the early days of the new Constitution. Therefore by no means could we render a greater disservice to India than by making the terms so good—I speak bluntly—as to encourage people to leave India. It is the last thing we want. We want to be just to individuals, but also we want to encourage them to continue their service in India and to give help to India that only they can give.
It is, I think, the judgment of the Government of India and of my noble friend and those who advise him, who have been in close consultation in this matter, that the provisions of the Bill do hold the balance fairly evenly, doing justice to the individual and refraining from giving actual encouragement to members of the Service to abandon their service and leave India. I apologise for answering the noble Lord at some length, but the matter is of first-rate importance and I think, if he will allow me to say so, he has done a great service in bringing it forward. I hope in what I have said I have shown that we are not unmindful of the interests of the individual or unsympathetic. There is one sentence I would like to add. If it be the case that anyone on retirement might wish to have a lump sum, it will, of course, be readily evident to all your Lordships that it would 598 be quite possible for anyone in that position to obtain a lump sum by commutation.
§ VISCOUNT BERTIE OF THAME
My Lords, the noble Viscount has just said that this matter should be dealt with by statutory rules and he then went on to say that any objection to those statutory rules could be ventilated in Parliament. But can those statutory rules be amended? I do not think they can. Therefore I submit my noble friend's Amendment ought, to be pressed.
§ VISCOUNT HALIFAX
If by leave of the House I may answer my noble friend, I would suggest that statutory rules in regard to which exception may be taken in this House or in another place, if they are not capable of amendment can be withdrawn and re-issued.
My Lords, I do not wish to keep your Lordships more than one minute. I would like to ask the noble Viscount, if he cannot accept my Amendment, whether he can give any undertaking or hold out any hope that rules to be made in regard to premature retirement may be extended to Indian officers of the Service.
§ VISCOUNT HALIFAX
My Lords, I am not in a position to answer my noble friend Yes or No. I can only say that I am well aware that there are great difficulties about doing that, but if he will be content to allow me to look into it between now and a later stage, I certainly will, or I will communicate with him.
§ On Question, Amendment negatived.
§ THE MARQUESS OF LONDONDERRY
My Lords, I think it will meet your Lordships' convenience if we interrupt the proceedings now and resume at half-past nine.
§ THE MARQUESS OF SALISBURY
My Lords, may I ask my noble friend whether he will indicate to which clause of the Bill he will go before the adjournment to-night? Of course, I do not want to interfere in any way or to question my noble friend in this matter, but we were under the impression—a very reasonable impression, because we have been told so—that we should not sit after dinner to-night. I do not mean to say for a moment that there was any pledge, but it was indicated that that was so. I could 599 suggest a point to which the Government might go; up to Clause 306, and leave us to begin with Clause 306 when we next meet; that would, I think, be most suitable.
§ THE MARQUESS OF LONDONDERRY
My Lords, if I might use a phrase which the noble Marquess used this afternoon, his memory is a great deal better than mine. But I was certainly under the impression that when I was telling your Lordships about the business of the House I said that, though I should be most reluctant to ask your Lordships to sit after dinner, yet it might possibly be necessary for us to do so. If I gave the noble Marquess a contrary impression, I can only apologise.
§ THE MARQUESS OF SALISBURY
No pledge was given of any kind whatever; it was only an understanding. I thought the noble Marquess only intended to sit after dinner on Monday, but that was a misunderstanding. I do not press my suggestion by any means; I fully fall in with his view.
§ THE MARQUESS OF LONDONDERRY
I am very grateful to the noble Marquess. I was hoping to reach the Schedules tonight, but I am certainly in your Lordships' hands. There is one point in the Bill to which the noble Marquess who sits behind me, and the noble Marquess who sits below the Gangway, would like to go, and I am sure there is some manner in which we could come to an agreement.
§ THE MARQUESS OF SALISBURY
I speak again only with the leave of your Lordships; it is very irregular. But I do not think there is any substance in the discussion after Clause 306. That is my impression. I think the whole thing would go through in a very short time; but Clause 306 is the Communal Award, a very important point. I do not remember anything of great importance after that.
§ LORD MARLEY
My Lords, in those circumstances would it not be possible to finish the whole Bill to-night? On behalf of the Opposition, I may say that we are perfectly prepared to sit all night.
§ THE MARQUESS OF SALISBURY
I thought there was a definite understanding that we were to sit on Monday.
§ LORD MARLEY
Not by the Opposition. It was clearly stated, as far as I 600 remember, that we would attempt to finish to-night, and that only if it was absolutely essential would this stage be continued on Monday.
§ LORD HASTINGS
My Lords, if I may be permitted to say a few words on behalf of the Back Bench members of this side of the House, I should like to urge upon the noble Leader to carry on as far as he possibly can with his Bill, and in any case to include the discussion of the Communal Award. I ask it for this reason, that many noble Lords have supported the Government by attendance at great inconvenience throughout the whole of the stages of this debate, and, on the one or two occasions on which the Leader of the House has requested them to come after dinner, have shown by their attendance in very large numbers that their principal desire is to complete the consideration of the Bill. Yesterday, when I was in the House, many noble Lords in speaking to me about the matter begged that, if I had the opportunity, I should press upon the Leader that he should carry on the Bill as far as he possibly could to-night and not cause them to return specially on Monday, merely to listen and not to take part in the debate, at great inconvenience and expense to themselves. I thought it was only right that I should put in these few remarks.
My Lords, I wonder if anyone has studied the convenience of the noble Marquess, Lord Zetland.
§ THE MARQUESS OF LONDONDERRY
I think it would suit your Lordships' convenience if we interrupted proceedings now, and I suggest that when we return after dinner we should see what progress is being made with the Bill, and then make up our minds as to when we should adjourn.
§ [The sitting was suspended at a quarter past eight o'clock and resumed at half-past nine.]:
§ Clause 269 [Indemnity for Past Acts]:
THE MARQUESS OF SALISBURY moved to insert:
(4) The provisions of this section shall apply (save as hereinater provided) to civil proceedings against any person in respect of any act done or purporting to be done by hint in the execution of his duty as a servant of the Crown in India after the relevant date:
§ The noble Marquess said: My Lords, there are always these little difficulties after a short release from our labours, and my noble friends, Lord Monkswell and the Earl of Mansfield, are not here to move this Amendment which stands in their name, but I do not know whether my noble friend the Secretary of State will allow me to move it on behalf of my noble friends, because perhaps he has some observations which he could make upon it I do not want to press him much in the matter, because, as he knows, we have had some unofficial conversations on these subjects, but I should just like to know what he has to say on the matter. I beg to move.
Page 168, line 13, at end, insert the said subsection.—(The Marquess of Salisbury.)
§ THE MARQUESS OF ZETLAND
My Lords, I am afraid this is not an Amendment which I can accept. It really extends protection against civil proceedings right into the future irrespective of what the subject of the proceedings might be. We think that we have gone as far as we possibly can to give protection, and this would be really more than we could do.
§ Amendment, by leave, withdrawn.
§ Clause 272 [Provisions as to family pensions funds]:602
Page 172, line 20, leave out ("supplementary") and insert ("pension or portion of a").—(The Marquess of Zetland.)
§ Clause 274 [Persons not to be disqualified by sex from, holding certain offices]:
Page 173, line 26, leave out ("Part X") and insert ("this Part").—(The Marquess of Zetland.)
§ Clause 290 [Power of His Majesty to make provision with respect to franchises and elections]:
Page 185, line 13, leave out ("or electoral college")
line 16, leave out ("or college ").—(The Marquess of Zetland.)
§ Clause 293:
§ Foreign, jurisdiction.
§ 293.—(1) Any power or jurisdiction here to fore exercised on His Majesty's behalf in parts of India outside British India by virtue of the Foreign Jurisdiction Act, 1890, or any Order in Council made under that Act, or otherwise, shall, after the establishment of the Federation, cease to be exercised in any Federated State in relation to any matter with respect to which the Federal Legislature has power to make laws for that State.
§ (2) Subject to the provisions of this section, any Order in Council with respect to the said power or jurisdiction made by virtue and in exercise of the powers by the Foreign Jurisdiction Act, 1890, or otherwise in His Majesty vested, and all delegations, rules and orders mad there under, shall continue to be of full force and effect until revoked or amended by any other Order in Council.
§ (4) In the Foreign Jurisdiction Act, 1890, the expression "a British court in a foreign country" shall, in relation to any part of India outside British India, include any person duly exercising on behalf of His Majesty any jurisdiction, civil or criminal, original or appellate, whether by virtue of an Order in Council or not.
THE MARQUESS OF ZETLAND moved to leave out subsections (1) and (2) and insert:
(1) Neither the executive authority of the Federation nor the legislative power of the Federal Legislature shall extend to any area in a Federated State which His Majesty in signifying his acceptance of the Instrument of Accession of that State may declare to be an area theretofore administered by or on behalf of His Majesty to which it is expedient that the provisions of this subsection should apply, and references in this Act to a Federated State shall not be construed as including references to any such area:
§ Provided that—
- (a) a declaration shall not be made under this subsection with respect to any area unless, before the execution by the Ruler of the Instrument of Accession, notice has been given to him of His Majesty's intention to make that declaration;
- (b) if His Majesty with the assent of the Ruler of the State relinquishes his powers and jurisdiction in relation to any such area or any part of any such area, the foregoing provisions of this subsection shall cease to apply to that area or part, and the executive authority of the Federation and the legislative power of the Federal Legislature shall extend thereto in respect of such matters and subject to such limitations as may be specified in a supplementary Instrument of Accession for the State.
§ Nothing in this subsection applies to any area if it appears to His Majesty that jurisdiction to administer the area was granted to him solely in connection with a railway.
§ (2) Subject as aforesaid and to the following provisions of this section, if, after the accession of a State becomes effective, power or jurisdiction therein with respect to any matter is, by virtue of the instrument of Accession of the State, exercisable, either generally or subject to limits, by the Federation, the Federal Legislature, the Federal Court, the Federal Railway Authority, or a Court or an authority exercising the power or jurisdiction by virtue of an Act of the Federal Legislature or is, by virtue of an agreement made under Part VI of this Act in relation to the administration of a law of the Federal Legislature, exercisable, either generally or subject to limits, by the Ruler or his officers, then any power or jurisdiction formerly exercisable on His Majesty's behalf in that State, whether by virtue of the Foreign Jurisdiction Act, 1890, or otherwise, shall not be exercisable in that State with respect to that matter or, as the case may be, with respect to that matter within those limits.
§ (3) So much of any law as by virtue of any power exercised by or on behalf of His Majesty to make laws in a State is in force in a Federated State immediately before the accession of the State becomes effective and might by virtue of the Instrument of Accession of the State be re-enacted for that State by the Federal Legislature shall continue in force and be deemed for the purposes of this Act to be a Federal law so re-enacted:604
§ Provided that any such law may be repealed or amended by Act of the Federal Legislature and unless continued in force by such an Act shall cease to have effect on the expiration of five years from the date when the accession of the State becomes effective.
§ (4) Subject as aforesaid, the power and jurisdiction exercisable by or on behalf of His Majesty before the commencement of Part III of this Act in Indian States shall continue to be exercisable, and any Order in Council with respect to the said powers of jurisdiction made under the Foreign Jurisdiction Act, 1890, or otherwise, and all delegations, rules and orders made under any such Order, shall continue to be of full force and effect untill the Order is amended or revoked by a subsequent Order:
§ Provided that nothing in this subsection shall be construed as prohibiting His Majesty from relinquishing any power or jurisdiction in any Indian State."
§ The noble Marquess said: My Lords, this, I am afraid, is a rather long and complicated Amendment on a very technical point, and I feel perhaps that I do owe an apology to your Lordships for having put it down for the Report stage, but it was a matter which was under discussion with the representatives of the Princes, and the agreement was not reached in time.
§ The purpose of Clause 293 is to define the extent to which powers hitherto exercised in the States by the Crown in virtue of the Foreign Jurisdiction Act or otherwise are to be affected by the provisions of this Bill: in other words, to define the extent to which those powers in Federated States are to continue or to be replaced by powers exercised by or on behalf of the Federation. It goes without saying that, in the case of the non-Federated States, all these powers, usually spoken of as "paramountcy powers," will continue unaffected. The clause in the Bill as introduced in another place has already been amended and expanded in that House, but fuller examination has shown that subsections (1) and (2) are an insufficiently comprehensive statement of requirements. It is proposed, therefore, to replace these two subsections by the longer draft, consisting of four subsections, on the Paper.
§ The general principles of this draft. are as follows: Subsection (1) is intended to deal with cases in which full jurisdiction has been exercised by the Crown in self-contained areas within a State, for example, such areas as Quetta, the Civil and Military Station of Bangalore, and cantonments 605 such as Secunderabad and Mhow. It is clear that the jurisdiction hitherto exercised in respect of such areas must continue in other words, that such areas must be regarded as excluded from the State for the purpose of Federal powers. The subsection accordingly gives the Crown power to notify any State that, on federation, any such area contained in the State will be treated as falling within the terms of this subsection. It further provides that, in the event of the Crown's deciding to relinquish jurisdiction over such an area, the powers relinquished are to be replaced through a supplementary Instrument of Accession by Federal powers.
§ Subsection (2) provides that any jurisdiction exercised in a State, whether territorially—for example, in respect of railway lands—or more generally, is to cease to be exercisable in so far as corresponding and co-extensive powers are assumed in the State by Federal authorities. Subsection (3) provides for the continuance in a State for a period of five years of any British Indian legislation in force in the State at the date of accession in virtue of foreign jurisdiction, even in respect of matters which become Federal matters in the State on its accession. This is clearly necessary in order to provide a period of grace for the Federal Legislature to replace such legislation by its own. Obviously great inconvenience would result if the consequence of accession was the immediate cessation of all British Indian law in force, for instance, throughout the Railway lands. Subsection (4) replaces in a somewhat fuller form the existing subsection (2) of the Bill, and continues in force all powers and jurisdiction hitherto exercisable in the States, save to the extent to which they are affected by the previous subsections.
§ Then the second Amendment, to insert words at the end of subsection (4), is designed to enable the Federal Court to hear appeals from decisions of such British Courts as are to continue to exercise foreign jurisdiction in the Federated States. That covers the various subsections of the proposed Amendment. I beg to move.
Page 186, line 13, leave out subsections (1) and (2) and insert the said new subsections.—(The Marquess of Zetland.)
§ LORD RANKEILLOUR
My Lords, I do not think the noble Marquess can complain if some members of your Lordships' House may require a little further elucidation of the meaning of this clause. So far as my limited comprehension goes, I gather that it is to form a number of little Imperial enclaves in various States which will not be under the Federal jurisdiction and I presume will be administered by the Central Government. I do not know: I should be very sorry to say that that is the correct interpretation. I only ask the noble Marquess whether it is. Then he made reference to Quetta. Quetta, if I remember rightly, is in a Chief Commissioner's Province, and I should not have thought that that would necessarily come under the provisions of this clause at all. Can the noble Marquess say how many areas will be affected by this clause? And I would suggest to him, even at the eleventh hour, that he should put in a schedule of the areas to be affected under it.
§ LORD HASTINGS
My Lords, if I may for a moment intervene, it would I think clearly be impossible to include in a schedule the areas to be affected because no area will be affected otherwise than in a State which is federated. It will be impossible at the present juncture to classify them.
§ THE MARQUESS OF SALISBURY
My Lords, as I understood the noble Marquess, he told us that the reason why this Amendment did not appear on the Order Paper earlier was that there were negotiations pending with the Princes which had not come to an end, and from that I gather that the negotiations on this matter have now come to an end. May I put the question: Has he the assent of the Princes to this Amendment?
§ THE MARQUESS OF ZETLAND
Yes, I think the wording of the Amendment as it stands now is the result of the negotiations with the representatives of the Princes.
§ THE MARQUESS OF ZETLAND moved to add to subsection (4): "and for the purposes of Section nine of that Act the Federal Court shall, as respects appellate jurisdiction in cases tried by a British Court in a Federated State, be deemed 607 to be a Court held in a British Possession or under the authority of His Majesty. "The noble Marquess said: My Lords, this Amendment is consequential upon the Amendment which your Lordships have just passed.
Page 187, line 2, at end insert the said words.—(The Marquess of Zetland.)
§ LORD MESTON moved, after Clause 299, to insert the following new clause:
§ Repeal of s. 18 of 21 Geo. 3. c. 70, and s. 12 of 37 Geo. 3. c. 142.
§ ". Section eighteen of the East India Company Act. 1780, and Section twelve of the East India Act, 1797 (being obsolete enactments containing savings for native law and custom) are hereby repealed."
§ The noble Lord said: My Lords, the two archaic provisions which this proposed new clause seeks to repeal are practically identical in form, though not in date. They purport to preserve the rights of the fathers of families under the Hindu or Mahomedan law of that date, and they prescribe that any act done by them "in consequence of the rule or law of caste" shall not be considered to be a crime even if it be an offence under the law of England. These provisions are certainly obsolete but apparently they have never been repealed. It is suggested that as an appeal to them might be awkward the present opportunity should be taken to get rid of them.
After Clause 299, insert the said new clause.—(Lord Meston.)
§ THE MARQUESS OF ZETLAND
My Lords, I agree with the noble Lord. I think there is a good reason for this Amendment, and I am prepared to accept it.
§ Clause 303 [Secretarial staffs of Governor-General and Governor]:
LORD RANKEILLOUR moved to insert the following new subsection:
(2) If the Governor-General or any Governor shall appoint to his secretarial staff any person who is a member of a Civil Service of, or the holder of a civil post under, the Crown in India, such person shall not be prejudiced in any of the rights secured to him by or under the provisions of this Act, and for the removal of doubts it is hereby declared that if it shall appear to the Secretary of State that the subsequent career of any such person has been adversely affected by reason of his having
served on such secretarial staff such person shall be entitled to receive compensation under the provisions of the section of this Act of which the marginal note is 'Compensation'.
§ The noble Lord said: My Lords, this is a matter of some importance, though it is possible the noble Marquess will be able to clear it up. It refers to the position of the personal staff of the Governor-General and the Governors, upon which so very much depends. Your Lordships will remember that some of us pressed hard for the number of his counsellors to be increased in view of the extraordinary complexity and number of the special duties and responsibilities which the Governor-General will have to discharge. In answer, we were referred to this clause whereby he can himself collect his personal staff together. One really would wish to know what is the position and status of this staff. I take it that it is a purely personal staff, and that the appointment of a staff creates in itself no rights—that is to say, the Governor-General can get his staff from where he likes. If he comes from Canada or Australia, he can bring them with him and confer on them any salaries he pleases. They would not be members of the Service, they would be purely personal, but that is their affair and his. But what would happen if he wished to appoint members of the existing Civil Service in India to his own personal staff? The noble Viscount, Lord Hardinge of Penshurst, has told us that, in the past, members of the Civil Service in India were only too glad to come on to his staff, but now conditions would be altogether changed. First of all, they would be members, presumably, of the Civil Service and therefore under the responsible Government of India.
§ The first question I would ask is: Can the Governor-General at his discretion select anyone in the Civil Service of India and appoint him to his personal staff? Is there any general or special provision in the Bill that allows him to do so? Then, when they are appointed, will their existing rights be secured to them? Perhaps they may, but I do not think it is all clear from the Bill. Then, what will happen to them at the end of what I may call their term of service with the Governor-General? They will, of course, have no right to be taken on by the next Governor-General. It will be merely a personal contract. Will they 609 revert to their former position? I take it that their coming on to the staff will not of itself give them any civil rights. They will not be members of the Civil Service because they are on the staff, nor will they be appointed to a civil post. Is it quite clear, in the event of their being seconded, that their rights will be preserved to them?
§ You have to look a little beyond the legal and contractual side of this question because, when they are in his personal service, it is almost certain that in the nature of things they will to a certain extent excite antagonism on the part of the Ministers. They will have to advise the Governor-General on a great number of points where his discretion or individual judgment is concerned, and they will be his men for that time and not the servants of the Federal Government. When they revert to their positions, if they do revert, with the Federal Government, obviously the advice given to the Governor-General will not be forgotten. They may find their position extremely awkward. If that is so, will they come under the provisions of Clause 248 with regard to compensation? If they feel it necessary to retire will that be available? It is just possible it may be argued legally that they will have forfeited their rights by their going on to the personal staff. I dare say there may be an answer to all these questions, but I do feel strongly that, with all the difficulties of the Governor-General, it is absolutely necessary that he should have the very best staff possible, and if there is any misapprehension on the part of the existing members of the Civil Service that they may lose something by going on to his personal staff the good government of India and the prestige of the Viceroy may so easily suffer. Therefore I move this in order that these points may be cleared up. I dare say the noble Marquess may be able to do that, but it is not plain on the face of the Bill.
Page 191, line 20, at end insert the said subsection.—(Lord Rankeillour.)
§ THE MARQUESS OF ZETLAND
My Lords, the Amendment of the noble Lord is, I think, if I may say so, wholly unnecessary. An official who joins the Governor-General's personal staff or the personal staff of the Governor, if he is a member of the Indian Civil Service, will 610 not thereby cease to be a member of the Indian Civil Service but will continue to be a member of the Indian Civil Service just as is the case at present. If I may give a personal illustration, my own private secretary when I was Governor of Bengal was one of the Indian civil servants. It was open to him, at the end of his period of service in that capacity, to return to what we call the "ordinary line," and then he would take his place amongst the district magistrates, or, if a senior officer, amongst the commissioners of divisions, according to his seniority and standing in the Service. Not one of his rights would be sacrificed by his taking service on the private staff of the Governor-General or the Governor. His position would be exactly the same as it would be if he accepted any other post which is open to members of the Indian Civil Service.
With regard to what the noble Lord said as to the possibility of an official being prejudiced in the eyes of the Ministers and the Indian Legislature as a result of his accepting a post on the private staff of the Governor-General, or of the Governor, I should be very surprised indeed if his position was in any way prejudiced. He will, indeed, be very largely the go-between of the Governor and his Ministers. He will be in constant and close touch both with the Governor himself in the case of the Provinces, and the Governor-General at the Centre, and his Ministers, and certainly my expectation would be that the relations between the Ministers and the head of the Governor's private staff would be of the most cordial character. In any case I can assure the noble Lord that he could not possibly lose any of his rights. He remains a member of the Indian Civil Service, and therefore retains all the rights which appertain to a member of that Service.
§ LORD RANKEILLOUR
The noble Marquess has not dealt, I think, with the point whether the Governor-General in his discretion can select any member he wishes to go on his Staff.
§ THE MARQUESS OF ZETLAND
Oh yes, certainly, just as is done now. The Governor of the Province at the present time will offer the appointment as head of his private staff to some member of the Indian Civil Service. Though I use the word "offer," it is equivalent to a command unless the officer in question was 611 engaged on some other very special work, in which case, of course, the Governor would waive his invitation and extend it to someone else. He has complete discretion to require any official he desires to join his personal staff.
§ LORD RANKEILLOUR
In view of what the noble Marquess has said I can only hope for the best and withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 304:
§ Protection of Governor-General, Governor or Secretary of State.
§ 304. No proceedings whatsoever shall lie in, and no process whatsoever shall issue from, any Court in India against the Governor-General, against the Governor of a Province, or against the Secretary of State, whether in a personal capacity or otherwise, and, except with the sanction of His Majesty in Council, no proceedings whatsoever shall lie in any Court in India against any person who has been the Governor-General, the Governor of a Province, or the Secretary of State in respect of anything done or omitted to be done by any of them during his term of office in performance or purported performance of the duties thereof:
§ Provided that nothing in this section shall be construed as restricting the right of any person to bring against the Federation, a Province, or the Secretary of State such proceedings as are mentioned in Chapter III of Part VII of this Act.
§ LORD RANKEILLOUR moved, after "otherwise," to insert "or against the counsellors of the Governor-General in respect of any thing counselled, ordered or done by any of them in their official capacity." The noble Lord said: My Lords, I have it on legal authority that the counsellors of the Governor should be included in the protection afforded to other officials according to the terms of the Bill. I beg to move.
Page 191, line 34, after ("otherwise") insert the said words.—(Lord Rankeillour.)
§ THE LORD CHANCELLOR
My Lords, it would be, I think, quite impossible to extend the complete immunity which is given by this Bill under exceptional circumstances for exceptional reasons to the Governor-General himself and the Governor and the Secretary of State, to anybody outside those very high offices. In regard to ordinary public servants the protection afforded to them is under Clause 269 with regard to the past, and Clause 270 with regard to the future. The Government do not think it 612 would be possible to go further than they have gone in that direction.
§ On Question, Amendment negatived.
THE MARQUESS OF ZETLAND moved to insert at the end of the clause:
(2) The provisions of the preceding subsection shall apply in relation to His Majesty's Representative for the exercise of the functions of the Crown in its relations with Indian States as they apply in relation to the Governor-General.
§ The noble Marquess said: My Lords, this Amendment would extend to the Governor-General in his capacity as the Crown's representative for relations with the States the same protection as he is afforded by the clause against processes and so on in the Indian Courts extended to the Governor-General, the Governor and the Secretary of State. The possibility of suits against or prosecutions of the Crown's representative personally is, I should imagine, a somewhat remote one, but it has been thought that it would be safer and more logical not to exclude this office from the scope of the clause.
Page 192, line 3, at end insert the said subsection.—(The Marquess of Zetland.)
§ Clause 306:
§ Procedure as respects proposals for amendment of certain provisions of Act and Orders in Council.
§ 306.—(l) Subject to the provisions of this section, if the Federal Legislature or any Provincial Legislature, on motions proposed in each Chamber by a Minister on behalf of the Council of Ministers, pass a Resolution recommending any such amendment of this Act or of an Order in Council made thereunder as is hereinafter mentioned, and on motions proposed in like manner, present to the Governor-General or, as the case may be, to the Governor an Address for submission to His Majesty praying that His Majesty may be pleased to communicate the Resolution to Parliament, the Secretary of State shall, within six months after the Resolution is so communicated, cause to be laid before both Houses of Parliament a statement of any action which it may be proposed to take thereon.
§ The Governor-General or the Governor, as the case may be, when forwarding any such Resolution and Address to the Secretary of State shall transmit therewith a statement of his opinion as to the proposed amendment and, in particular, as to the effect which it would have on the interests of any minority, and the Secretary of State shall cause such statement to be laid before Parliament.613
§ In formulating any such statement of opinion the Governor-General or the Governor, as the case may be, shall act in his discretion.
§ (4) His Majesty in Council may at any time before or after the commencement of Part III of this Act, whether the ten years referred to in the last preceding subsection have elapsed or not, and whether any such Address as is mentioned in this section has been submitted to His Majesty or not, make in the provisions of this Act any such amendment as is referred to in subsection (2) of this section:
§ Provided that—
- (i) if no such Address has been submitted to His Majesty, then, before the draft of any Order which it is proposed to submit to His Majesty is laid before Parliament, the Secretary of State shall, unless it appears to hint that the proposed amendment is of a minor or drafting nature, take such steps as His Majesty may direct for ascertaining the views of the Governments and Legislatures in India who would be affected by the proposed amendment;
- (ii) the provisions of Part II of the First Schedule to this Act shall not be amended without the consent of the Ruler of any State which will be affected by the amendment.
§ THE MARQUESS OF ZETLAND moved, in the second paragraph of subsection (1), after "minority," to insert "together with a report as to the views of any minority likely to be affected. "The noble Marquess said: My Lords, the Amendments to this clause which I have placed on the Paper are my contribution towards, I hope, an agreement over the question which we discussed at great length in Committee on the clause dealing with the Communal Award. It seems to me as a result of our discussions in Committee that what really was desired by many of your Lordships was that Parliament, when had to consider, if it did ever have to consider, any alteration affecting the Communal Award, should be in possession not only of the Resolutions which have been passed in the Legislatures in India, but also of the views of the minorities who might be affected by the proposed changes.
I promised that before the Report stage I would try to produce words which would cover that point, and the words which I have put down on the Order Paper would make the clause read as follows. Beginning from about two-thirds of the way down the page with the words "The Governor-General or the Governor", I will read that part
of the clause, because that is the part which is affected by my Amendment:
The Governor-General or the Governor, as the case may be, when forwarding any such Resolution and Address to the Secretary of State"—
That is, of course, a Resolution passed by the Legislatures in India—
shall transmit therewith a statement of his opinion as to the proposed amendment and, in particular, as to the effect which it would have on the interests of any minority,"—
and then I propose to insert these words:
together with a report as to the views of any minority likely to be affected."—
and the paragraph ends:
and the Secretary of State shall cause such statement to be laid before Parliament.
And then in the next paragraph, which in the Bill as it stands reads as follows:
In formulating any such statement of opinion the Governor-General or the Governor, as the case may be, shall act in his discretion,
I would propose to leave out the words
formulating any such statement of opinion,
and insert instead of them these words:
In performing his duties under this subsection the Governor-General or the Governor, as the case may be, shall act in his discretion.
The duties which he would be performing under that, subsection would be supplying to Parliament not only, as I said, the results of Resolutions passed in the Legislatures, and not only his own opinion as to the effect which they would have upon the minorities, but also a report as to the views of the minorities themselves.
I might, at the same time, because it is all one question, deal with the further Amendment on page 194 of the Bill. I propose to add at the end of Clause 306 (4) (i) these words:
and the views of any minorities likely to be so affected.
so that the proviso would then read as follows:
(i) if no such Address has been submitted to His Majesty, then, before the draft of any Order which it is proposed to submit to His Majesty is laid before Parliament, the Secretary of State shall, unless it appears to him that the proposed amendment is of a minor or drafting nature, take such steps as His Majesty
may direct for ascertaining the views of the Governments and Legislatures in India who would be affected by the proposed amendment, and the views of any minorities likely to be so affected.
I hope that these additions may go far to remove the doubts which noble Lords have with regard to this clause. Noble Lords no doubt have, as I have myself, received many representations, many cables and so on upon this question, but I am not surprised, because, as I have pointed out, the debate in this House on the Committee stage undoubtedly did once more create doubt in the minds of a number of those who are concerned; but your Lordships will not, I hope, suppose that many Moslems do not realise the necessity of some such clause as this.
For instance, Sir A. H. Ghuznavi, who was, I think, a member of one or more of the Round-Table Conferences, and certainly was a delegate to the Joint Select Committee, published a statement in the Press in which he said that a general clause of this kind—he was referring to the clause of which I am speaking—is known to be usual in a Bill of this character, and he went on to say—this was a, published statement in the Press in India:
I cannot possibly conceive that His Majesty's Government will consciously give the go-by to the terms of the Communal Award, and thereby sacrifice the interests of minorities without their consent.
That is, of course, quite right. May I repeat, because it is so easy for misunderstandings and misrepresentations to gain currency in connection with a matter of this kind, that there is not the slightest intention of altering the Communal Award without the consent of those who are concerned; but the second part of this clause really is desirable in order that small alterations, not affecting the Communal Award at all, may be made without the entire apparatus of a new Act of Parliament to enable that to be done.
§ May I repeat once more that Parliament will be the authority which will have complete control in this matter, because no change under this clause can be made without it being submitted to Parliament in the shape of an Order in Council, and Parliament will have complete control. If, with all the information which we now propose to place before Parliament, Parliament considers that there is an infringement of the 616 Communal Award which is not justified, Parliament will be in a position to say "No," and to refuse assent to any proposal of that kind; but, as I have said, no proposal is ever in the least likely to be made which would affect the Communal Award against the wishes of the minorities concerned.
§ I would also repeat what I think I said on the Committee stage, that since Parliament is the sovereign power which has the final say, if Parliament really was going to break deliberately a pledge of that kind it could do it by simply amending the Act. If Parliament was determined to break the pledge—and I cannot believe, whatever noble Lords may say as to the constitution of Parliament in the future, that Parliament would ever deliberately do anything which was breaking what was a clear pledge—if Parliament was so debased as to do that, it could do it just as easily by amending a part of the Act as it could by passing an Order in Council. My main object has been to find words which would meet the views of those who were anxious lest under the clause as it stood the views of the minorities might not be adequately placed before Parliament in the event of any such change as is contemplated being brought before Parliament.
Page 192, line 34, after ("minority") insert the said words.—(The Marquess of Zetland.)
§ LORD MIDDLETON moved to add to the proposed Amendment: "by the proposed amendment and as to whether the majority of the representatives of that minority in the appropriate Legislature have consented thereto". The noble Lord said: My Lords, the noble Marquess's Amendment is indeed a crumb of comfort to those of us who feel considerable anxiety about this clause. But I do not feel altogether satisfied that it goes quite far enough, and therefore I have put down an Amendment which seeks to ensure that Parliament will be fully informed, not only of the views of minorities affected, but also as to whether there is actual consent by the majority of such a minority. The Amendment furthermore indicates the machinery for ascertaining the views of the minorities, using the elected representatives for the purpose. The noble Marquess, Lord Linlithgow, expressed some anxiety on 617 this point in Committee, and I hope that what we offer in this Amendment will now satisfy him and the noble Marquess, Lord Zetland. If Lord Zetland will accept the Amendment I think he will have taken a long step towards removing considerable anxiety which is felt in the ranks of at least one community which is in a minority in more than one Province. But my concern is not only for one minority, but for all of them, and I think that this Amendment should meet the case in the event of any minority being concerned.
§ The noble Marquess has referred to the All-India Moslem Conference, and I would like to say in parenthesis that this spate of telegrams and so on started coming in after the Bill left another place, and before there had ever been any debate in your Lordships' House on this particular clause. The All-India Moslem Conference would like to have the matter carried just a little further than I have in my Amendment, and they would stipulate that there should be a three-fourths majority of the representatives of any community affected by any change; but I am advised that it is not in accordance with the usual practice of law-making to lay down anything quite so exact or so rigid in a Bill, and so I have tabled this Amendment in terms which I hope will be most likely to find acceptance by your Lordships. If the Secretary of State will accept it, surely no injury will be done to the clause, but I think that it will be made to conform even more closely to the conditions of the Communal Award.
§ I will make no secret of the fact that I should have liked to go a little further and introduce another Amendment to the effect that there could be no change within ten years, and then I think the clause would be as nearly as possible beyond any reasonable criticism. I am informed that I should not be out of order if I were to move such an Amendment—an Amendment on the Report stage which had been rejected in Committee; but I believe there is a convention, and I think Lord Salisbury mentioned that in this House it is not the custom to do so. I most respectfully urge the noble Marquess not to reject this Amendment. I think it is not unreasonable, and it is moved with a genuine desire to improve the clause and to give to all minorities 618 a feeling of confidence that their interests are being made as safe as it is possible to make them.
Amendment to the proposed Amendment moved—
After ("affected") insert the said new words.—(Lord Middleton.)
§ THE MARQUESS OF SALISBURY
My Lords, first of all may I venture to say one word with reference to what has just fallen from my noble friend, because I think it is important it should be placed on record what is in order and what is not in order on Report. I am only a very humble member of your Lordships' House, but I have been here a long time, and I think I shall be stating a fact when I say there is nothing out of order in repeating on Report what has been moved in Committee. But your Lordships are generally rather impatient of a Motion which seeks to reverse in so many words what has been done in Committee. There may be special circumstances in which even that might be done—for instance, if the Committee decision had been reached in a very thin House or if there had been some misapprehension at the time, or any other incidental circumstance of that kind; but there is nothing out of order at all in repeating it, although it is contrary to the general practice of the House. I only say that because I am anxious we should not place on record a point of view which I believe to be quite contrary to the practice of the House as to what is actually in order and what is not in order.
On the merits of this Amendment, of course I agree with my noble friend that we are very glad that the Government have seen their way to make an advance on this matter, but I do agree also with my noble friend that it is not far enough. Why did the Government make an advance at all? Why were they not content with the words of the Bill as it stood? I think the reason was that they must have been convinced that the words of the Bill as it stood did not go far enough—that is to say, there was something wanting. It was not sufficient that the Governor should transmit the views of the Legislatures or even his own opinion as to what the effect of the proposed change would be. The Government felt that that was not sufficient. Why did they not think so? They thought there must be something more. Of course it is 619 perfectly true that Parliament is supreme in all things, and that if Parliament likes not only to break any pledges which have been made but to reverse its own decisions or the decisions of previous Parliaments, there is nothing to prevent it; but we are accustomed to judge the intention of Parliament by the words of the Statute.
That is the whole practice of our law. We have to take the words as they stand. For example, if an Act of Parliament is passed and becomes a matter of litigation in the Courts, it is no good saying to the Judge: "This is what Parliament intended beyond what the words state," or "This is what the Minister of the Government of the day pledged himself to when this particular provision was passed." It is no good saying that to the Judge. He would say: "I have nothing to do with that. I look at the terms of the Statute, and they say so and so. That is all I have to consider. "That is the fundamental way in which we regard the law. We are engaged in passing a law, and it is, therefore, necessary and right that Parliament should say what it means. It is not that we doubt the good faith of His Majesty's Government; I am quite sure my noble friend will believe that. We have not the slightest doubt as long as the present Government remain in office that they would fulfil whatever promises they had made. But suppose they are no longer in office? It is not necessary to say that their successors would act in a dishonourable manner, but how far would their successors be bound by their declaration? How far would the Communal Award bind a Government, say, of twenty years hence? Why should it bind them? Upon what principle could it bind them? It is an announcement of the intention of the Government of the day, but it evidently cannot be held to be binding for all time. That really would be an extravagance.
Then what are we to rely upon? We can rely upon nothing except the terms of the Statute. When a future Parliament is asked to deal with this topic, can they see upon the face of the Statute that not only must the views of the minority be ascertained but their consent must be ascertained? Any Parliament would think very carefully before they violated that express provision, actually stated 620 as the law, upon which everybody had acted in good faith, believing that Parliament meant what it said and had entered into engagements on the strength of the actual terms of the Statute. Of course it would be far more binding, must be more binding. That is what those communities in India who have corresponded with us think. In effect they say: Is it the fact that Parliament is going back upon the Communal Award? Several things are stated in the clause. It is obviously necessary that something should be stated, but the clause leaves out the essentials. It would have been better not to have touched the subject at all than to have put in a great deal and left out something, because everybody must draw an inference. Why should you go a certain length and then stop? Is it unreasonable to draw an inference? If you say that the Government must ascertain the views of a community and do not say "get their consent," everybody must draw the inference that there must be some distinction between the views and the consent. What other meaning could the proceedings have? I suggest that the Government are bound to go the full length. That is not being ungrateful to the Government for going the length they have, but only pointing out to them what is the necessary inference from the way the terms appear on the face of the Bill.
The only thing which particularly weighs with me in the speech of the Secretary of State was when he said, how are we to deal with small alterations? I think that is a good point. It may be very right and very proper that there should be machinery by which trivial matters could be put right without an appeal to an Act of Parliament, and if my noble friend could produce some provision under which that could be done we should, of course, be delighted to cooperate with him in carrying it into effect. But look at the way this clause has grown up. When it was first introduced into your Lordships' House there was no stipulation even to ascertain the views of the community. Then upon pressure that was put in, and we stopped there. When we asked why not go the whole length of the Communal Award and put in consent, then "No, no, no." There was an absolute block. I cannot doubt what inference public opinion in India will draw. The inference will be 621 that there is some distinction, and I do not think you can avoid the conclusion that there is some distinction. Otherwise, why should you have done it?
I hope I have not pressed the matter too far. There is always a danger in matters about which one is greatly concerned of over-stating one's case. I have tried to state my ease in moderate language, and I hope the Government will consider the matter further. I suggest that they should accept the Amendment of my noble friend Lord Middleton, and put it in the Bill. If it is necessary to make some further provision to cover trivial matters, I cannot believe that it is beyond the skill of my noble friend and his advisers to produce the necessary provision. As things stand, I am afraid there is bound to be misconception. The Mahomedan community in India will consider that they have been unfairly dealt with, and that faith has not been kept with them. I suggest that the Government will make a great mistake unless they go a step further.
§ THE MARQUESS OF ZETLAND
My Lords, I wish to say a word in reply to the Amendment which has been moved to my Amendment. I feel bound to say that it is not very encouraging when one tries to meet noble Lords on points of this kind. What is the result when we do try? I am asked why we put in this Amendment. The noble Marquess at once draws the inference that I must have discovered that there is something faulty in the Bill. I am asked to amend the Bill, and because I promised my noble friend that I would try to find words to meet the point lie raised on the Committee stage—
§ THE MARQUESS OF SALISBURY
The noble Marquess was meeting the suggestion of the noble Marquess who sits immediately behind him, Lord Linlithgow. That was the origin of these words.
§ THE MARQUESS OF ZETLAND
I suppose it does not matter which noble Lord I am trying to meet. I am trying to meet all noble Lords. But as I say, when I do try the noble Marquess gets up and makes a long speech and says, "How careless the Government are. They have never considered the matter. Why are they putting in this Amendment? It means that really there is something wrong." It was not the case at all. I 622 am doubtful myself, with regard to the Amendment which the noble Lord, Lord Middleton, proposes to my Amendment, whether it really will result in Parliament obtaining a, better view of the wishes of the minorities, but if the noble Lord thinks that it will, I am perfectly ready to accept it. I think, however, perhaps from a drafting point of view that it would be better just to make a very small alteration. I will read out to the noble Lord what I think it should be. The clause reads: "likely to be affected by the proposed Amendment," and I propose to add:and as to whether a majority "—I put in the word "a" instead of "the"—of the representatives of that minority in the Federal or, as the case may be, the Provincial Legislature support the proposal, and the Secretary of State shall cause such statement and report to be laid before Parliament.
§ THE MARQUESS OF ZETLAND
If the noble Lord will agree to that very small verbal Amendment I shall be happy to accept his Amendment.
§ Amendment to the proposed Amendment, by leave, withdrawn.
Amendment to the proposed Amendment moved—
After ("affected") insert ("by the proposed amendment and as to whether a majority of the representatives of that minority in the Federal or, as the case may be, the Provincial Legislature support the proposal").—(Lord Middleton.)
Page 192, line 35, after ("statement") insert ("and report")
Page 192, line 37, leave out ("formulating any such statement of opinion") and insert ("performing his duties under this subsection").—(The Marquess of Zetland.)
§ THE MARQUESS OF ZETLAND had given Notice to move, at the end of proviso (i) in subsection (4), to insert "and the views of any minority likely to be so affected." The noble Marquess said: My Lords, this is consequential, together with the Amendment suggested by Lord Middleton.
Page 194, line 17, at end insert ("and the views of any minority likely to be so affected by the proposed amendment and whether a majority of the representatives of that minority in the Federal or, as the case may be, the Provincial Legislature support the proposal").—(The Marquess of Zetland.)
LORD MIDDLETON moved, in subsection (4), to insert the following new paragraph:
(iii) No Amendment affecting any minority shall be made to the provisions of the First and Fifth Schedules to this Act unless a majority of the representatives of that minority in the appropriate Legislature shall have consented to the Amendment.
§ The noble Lord said: My Lords, I do not think there is any necessity for me to speak to this Amendment, because it is of the same substance as the other two Amendments which have been agreed to. I beg to move.
Page 194, line 21, at end insert the new paragraph.—(Lord Middleton.)
THE MARQUESS OF ZETIAND
My Lords, I am afraid I cannot accept this Amendment. This is the Amendment which lays down that:No Amendment affecting ally minority shall be made to the provisions of the First and Fifth Schedules to this Act unless a majority of the representatives of that minority in the appropriate Legislature shall have consented to the Amendment.
My Lords, I should like to withdraw it. I am advised that I should withdraw it and I should like to do so.
§ Amendment, by leave, withdrawn.
§ Clause 307:
§ Orders in Council.
§ (3) Nothing in this section applies to any Order of His Majesty in Council made in connection with any appeal to His Majesty in Council.624
§ THE MARQUESS OF ZETLAND moved, at the beginning of subsection (1), to insert "Any power conferred by this Act on His Majesty in Council shall be exerciseable only by Order in Council and". The noble Marquess said: My Lords, this is to meet my noble friend Lord Rankeillour, by the provision that any power conferred by this Act on His Majesty in Council shall be exerciseable only by Order in Council. I explained in the Committee stage of the Bill that I would move an Amendment to that effect on the Report stage, in order to meet the point of my noble friend.
Page 194, line 22, at the beginning, insert the said words.—(The Marquess of Zetland.)
THE MARQUESS OF ZETLAND moved to insert at the end of subsection (3):
or to any Order of His Majesty in Council sanctioning the taking of proceedings against a person who has been the Governor-General, His Majesty's Representative for the exercise of the functions of the Crown in its relations with Indian States, the Governor of a Province or the Secretary of State.
§ The noble Marquess said: My Lords, this is part of the same Amendment. It merely takes out of the operation of Clause 307, besides Orders giving effect to judgments of the Privy Council, which are already included in subsection (3), Orders giving effect to decisions under Clause 304, which provides that "except with the sanction of His Majesty in Council" no proceedings shall lie in any Court in India against ex-Governors-General or Governors. I think it is obvious that the sanction by the Privy Council to a prosecution of an ex-Governor-General under Clause 304, if necessity for such sanction should ever arise, is not a matter which ought to be subject to the approval of both Houses of Parliament, since it would be an essentially administrative, in fact, a quasi-judicial, decision.
Page 195, line 10, at end, insert the said words.—(The Marquess of Zetland.)
§ LORD RANKEILLOUR
Is this to obviate the necessity of the impeachment of an ex-Governor-General, such as in the case of Warren Hastings? I presume that is the object.
§ Clause 335 [Right of Governor to address and send messages to Chambers]:
Page 215, line 31, after ("Legislature") insert ("whether with respect to a Bill then pending in the Legislature or otherwise").—(The Marquess of Zetland.)
§ Clause 336 [Rights of Ministers and counsellors as respects Chambers]:
Page 215, line 35, leave out ("and every counsellor") and insert ("every counsellor and the Advocate-General").—(Lord Hastings.)
§ Clause 340 [Vacation of posts]:
Page 217, line 32, after ("Governor") insert ("exercising his individual judgment").—(The Marquess of Zetland.)
§ Clause 360 [British subjects domiciled in the United Kingdom and British India]:
Page 230, line 23, leave out ("law of Burma") and insert ("Act of the Legislature").
Page 231, line 8, leave out ("law of Burma") and insert ("Act of the Legislature").
Page 232, line 5, leave out ("law") and insert ("Act").—(The Marquess of Zetland.)
§ Clause 361 [Taxation]:
Page 232, line 10, leave out ("law") and insert ("Act")
Page 232, line 16, leave out ("law") and insert ("Act")
Page 232, line 20, leave out ("a law") and insert ("an Act").—(The Marquess of Zetland.)
§ Clause 362 [Companies]:
Page 232, line 34, leave out ("law of Burma") and insert ("Act of the Legislature")
Page 233, line 17, leave out ("law of Burma") and insert ("Act of the Legislature")
Page 233, line 40, leave out ("law of Burma") and insert ("Act of the Legislature").
Page 234, line 20, leave out ("law of Burma") and insert ("Act of the Legislature").—(The Marquess of Zetland.)
§ Clause 363 [Ships and aircraft]:
Page 235, line 5, leave out ("law of Burma") and insert ("Act of the Legislature").—(The Marquess of Zetland.)
§ THE MARQUESS OF ZETLAND moved, after Clause 364, to insert the following new clause:
§ . The foregoing provisions of this Chapter shall apply in relation to any ordinance, order, by-law, rule or regulation passed or made after the passing of this Act and having by virtue of any existing Indian or Burman law, or of any Act of the Legislature, the force of law, as they apply in relation to Acts of the Legislature, but, save as aforesaid, nothing in those provisions shall affect the operation of any existing Indian or Burman law.
§ The noble Marquess said: My Lords, this is consequential.
After Clause 364, insert the said clause.—(The Marquess of Zetland.)
§ Clause 366 [Professional and technical qualifications in general]:
Page 238, line 17, leave out ("law of Burma") and insert ("Act of the Legislature").—(The Marquess of Zetland.)
§ Clause 369 [Savings]:627
Page 241, line 19, leave out subsections (1) and (2).—(The Marquess of Zetland.)
§ Clause 384 [Executive authority in respect of railways to be exercised by Railway Board]:
THE MARQUESS OF ZETLAND moved to insert at the end of the clause:
So much of Chapter IX of this Part of this Act as provides that powers in relation to the railway services of Burma shall be exercised by the Board shall not apply in relation to officers of the Government employed in the performance of any of the functions mentioned in this subsection.
§ The noble Marquess said: My Lords this Amendment is consequential.
Page 249, line 40, at end insert the said words.—(The Marquess of Zetland.)
§ Clause 389 [Finance of the Railway Board]:
Page 252, line 22, at end insert ("operated by the Board")
Page 252, line 25, leave out ("working expenses") and insert ("the working expenses of the railways operated by the Board")
Page 252, line 36, at end insert ("of and on the railways operated by the Board").—(The Marquess of Zetland.)
§ Clause 420 [Conditions of service, pensions, etc., of persons recruited by Secretary of State]:
§ THE LORD CHANCELLOR
My Lords, there is a manuscript Amendment to this clause which is consequential on what was done before we adjourned.
Page 267, line 13, after ("State") insert ("or any order relating to leave of not less than three months of any such person or any order suspending any such person from office").—(The Lord Chancellor.)
§ Clause 454 [Power of Governors to issue Proclamations]:628
Page 286, line 29, leave out ("continue to have effect notwithstanding the revocation or expiration of the Proclamation") and insert ("subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the Proclamation ceases to have effect, unless sooner repealed or re-enacted by Act of the Legislature").—(The Marquess of Zetland.)
§ Clause 469 [Procedure as respects proposals for amendment of certain provisions of Act and Orders in Council]:
Page 292, line 40, after ("minority") insert ("together with a report as to the views of any minority likely to be affected by the proposed amendment and as to whether a majority of the representatives of that minority in the Legislature support the proposal")
Page 292, line 41, after ("statement") insert ("and report")
Page 293, line 1, leave out ("formulating any such statement of opinion") and insert ("performing his duties under this subsection")
Page 293, line 27, at end insert ("and of any minority likely to be affected by the proposed amendment and whether a majority of the representatives of that minority in the Legislature support the proposal").—(The Marquess of Zetland.)
§ Clause 472 [Orders in Council]:
Page 294, line 38, at the beginning insert ("Any power conferred by this Part of this Act on His Majesty in Council shall be exercisable only by Order in Council, and")
Page 295, line 27, at end insert ("or to any Order of His Majesty in Council sanctioning the taking of proceedings against a person who has been the Governor or the Secretary of State").—(The Marquess of Zetland.)
§ First Schedule: