INDIA AND BURMA (EXISTING LAWS) BILL. [H.L.] (Hansard, 11 December 1936)

§ THE SECRETARY OF STATE FOR INDIA (THE MARQUESS OF ZETLAND)

My Lords, though this Bill is of a purely technical character and raises no question of policy or principle it is desirable that I should say a few words to explain its purposes to your Lordships. The main purpose of the Bill is to make clear what was certainly the intention of Parliament in enacting Sections 292 and 293 of the Government of India Act, 1935. May I call to your Lordships' minds the object of the first of these two sections, which is to keep alive, notwithstanding the repeal of the existing Government of India Act which affords their legal basis, the contents of the Indian Statute Book, both Central and Provincial, subject, of course, to their subsequent amendment or repeal by the Legislatures set up by the new Act. The object of the second section is to afford an immediate and temporary means of bringing into accord with the provisions of the new Act the contents of the Indian Statute Book—a process which consists for the most part of ensuring that powers conferred by the existing Indian Acts on Indian authorities are conferred on those authorities to which they will belong as the result of the distribution of subjects effected by the Act of 1935. The means provided for this purpose in the section is adaptations and modifications of the Indian Statute Book by means of an Order in Council, the draft of which will be laid before Parliament for approval immediately after the Christmas Recess.

While there is no doubt as to the intentions of Parliament in enacting these two sections, certain points of doubt have arisen as to the actual effects of the language used in them. Let me explain by a reference to the wording of the sections themselves. The words used in Section 292 for the purpose I have already explained are: all the law in force in British India immediately before the commencement of Part III of this Act shall continue in force in British India. These words have given rise to three possible doubts. In the first place, do they or do they not continue in force those Acts or parts of Acts which are not, and may not be immediately before 740 April 1 next, in actual operation? Acts are common on the Indian Statute Book which provide (a) that they shall be brought into force as a whole with effect from the date to be fixed by a notification issued by the Executive Government; or (b) that certain of their provisions shall come into force forthwith and certain other provisions shall come into force on a date to be fixed by the Executive Government; or (c) that certain provisions of them shall come into force forthwith in certain areas with power to the Executive subsequently by notification to extend those provisions to other areas. Great confusion would result if there were any legal doubt as to what the law in force in British India after April 1 next actually was, and it has been felt, therefore that it is desirable to place the matter beyond question. This point is dealt with by paragraph (i) of subsection (1) of Clause 1 of the Bill.

The second doubt is due to the governing words in Section 292, which provide that there shall "continue in force in British India." "all the law it force in British India." The existing Indian Legislature has in certain respects extra-territorial powers, and certain Acts, notably the Indian Army Act and the Indian Divorce Act, apply to certain persons outside British India. While the operation of these two Acts in British India would undoubtedly be continued in force, doubt has been felt whether the words just quoted would have the effect of preserving their extra-territorial application. It was not, of course, intended by the wording of the section to affect in any way the application of such Acts, and it is the purpose of paragraph (ii) of subsection (1) of Clause 1 of the Bill to remove this doubt.

The third doubt which has arisen on the construction of Section 292 is whether it must be construed as continuing in force indefinitely, that is, until specifically repealed by the competent Legislature after April 1, any Act which is expressed by its terms to extend only up to a particular date. There are various Acts on the Indian Statute Book which are of this description, and there was no intention when the section was framed that it should have the effect of over-riding any such limiting provision, and of automatically continuing in force indefinitely an Act which, when passed, was in- 741 tended to have a limited duration. This point is dealt with in paragraph (iv) of subsection (1) of Clause 1.

The last point with which the Bill deals has risen in the course of adapting the Indian Statute Book under Section 293. The relevant words of this section read as follow: His Majesty may by Order in Council … provide that … any law in British India … shall have effect subject to such adaptations and modifications as appear to His Majesty to be necessary or expedient. … Doubt is felt as to whether the words "subject to such adaptations and modifications" afford authority for the complete repeal by Order in Council of any Indian Act or part or such Act, even if the continuance of the Act or of sections of it cannot be adapted in a manner which would render its provisions consistent with the Act of 1935. Unless this authority can be derived from the section the process of adaptation would necessarily be in some respects incomplete and not in accordance with the general intention of the section. Paragraph (iii) of subsection (1) of Clause 1 accordingly provides for such repeal in whole or in part by the process of adaptation and modification. Subsection (2) of Clause 1 merely applies, with the necessary adaptations, the preceding provisions of the Bill to the corresponding provisions of Sections 148 and 149 of the new Government of Burma Act. I beg to move.