GOVERNMENT OF INDIA (EXCLUDED AND PARTIALLY EXCLUDED AREAS) ORDER, 1936. (Hansard, 25 February 1936)

§ THE SECRETARY OF STATE FOR INDIA (THE MARQUESS OF ZETLAND)
My Lords, I beg to move, That the Draft Order as presented to Parliament on the 5th instant, and reported from the India 735 and Burma Orders Committee on Tuesday last, be approved with Amendments. The purpose of this Order is to give effect to Section 91 of the Government of India Act, which lays upon the Secretary of State the duty of submitting to Parliament within six months of the passage of that Act an Order in Council specifying the tracts in India which are to be treated as either wholly excluded areas or as partially excluded areas. It was, of course, always the intention that there should be a Schedule to the Act defining the areas in India which were to be so treated, and a Schedule was actually published and submitted to another place with the Bill itself last summer. But it is quite clear that there was a very widespread feeling in another place that further consideration was desirable before the final definition of these areas was reached, and my predecessor gave a promise that a thorough examination of the matter should be undertaken and that the result of that examination should be laid before Parliament in the shape of an Order in Council. This Order is the fulfilment of that promise.
Let me explain briefly the need for provisions of this kind. The population of India, as your Lordships are well aware, is far from homogeneous. In addition to great differences of race, of creed and of language, there are also great differences of civilisation and culture. Indeed, it is not too much to say, I think, that there are to be found living side by side in India at the present day representatives of almost every epoch of civilisation from the stone age to the twentieth century. It is only to be expected in those circumstances that there will be some segments of the population of India for whom a modern representative system of government will prove to be wholly unsuited. Perhaps I might venture to give your Lordships an example of the primitive simplicity of some of these aboriginal and backward people which are found living scattered about in different parts of India. For many centuries it was the practice—a very heinous practice, let it be admitted—amongst the Gonds of Ganjam and Orissa to indulge in female infanticide. That practice of course was brought to an end with British administration. But even so recently as the present century a deputation from some of those tribes waited upon a British official with a petition that they should be per- 736 mitted to resume the practice. The official was naturally a little bit astonished at this request, and he asked for their reason. The reason which they gave was this, that the deity whom they worshipped, observing the truly deplorable results which had followed from the creation of feminine nature, had charged himself only to bring up so many females as they could be sure of restraining from inflicting evil upon society. I need hardly say that the petition in that case was not granted.
Of course, the fact that there are considerable tracts in India inhabited by peoples of this kind who required a simpler form of government than is now proposed has been recognised for a very long time past. Indeed, it was recognised as soon as the system of government in India lost some of its patriarchal character and acquired a considerable volume of Statute law. Thus, in the year 1874, there was passed what is known as the Scheduled Districts Act, an Act to enable a clear declaration of law to be made—of the law, that is to say, which was enforced in those parts of India which (I am now quoting from the wording of the Statute): had never been brought within, or had from time to time been removed from, the operation of the general Acts and Regulations and the jurisdiction of the ordinary Courts of Judicature. These districts are known as the Scheduled Districts, and one of the main results of the Act of 1874 was to exclude such districts from the direct control of the Legislatures, both Central and Provincial. Then, when the Constitution set up under the Act of 1919 was brought into force, power was given to declare certain areas to be backward areas, and power was taken to provide that in such areas the ordinary law should be operative subject to modifications.
The effect of the Order which is now before your Lordships will be to bring uniformity into the system of excluding areas which has been in operation up to the present time and to define accurately, as is done in the Order itself, the actual areas concerned. Perhaps I might explain for a moment to those of your Lordships who are sufficiently interested the difference between a wholly excluded area and a partially excluded area. In the case of a wholly excluded area, the administration is reserved exclusively to 737 the Governor—that is to say, the Governor will be acting in his discretion or, in other words, in responsibility to Parliament here. In the case of a partially excluded area, the Governor will consult his Ministers and will seek their advice, but he will not be bound to act upon it. If he is satisfied that in the interests of the persons residing in the partially excluded areas he should act contrary to the advice of his he will be entitled to do so. That applies in both cases—in the case of a wholly excluded area and in the case of a partially excluded area—to matters of legislation and to matters of administration.
A noble friend of mine has pointed out to me that there appears to be no actual definition, on the face of the Act, of a partially excluded area. I am bound to admit that there is no definition of such an area in so many words, but nevertheless the Act lays down the conditions both of the wholly excluded areas and of the partially excluded areas. In Section 92 of the Act it is laid down that The executive authority of a Province"— and the executive authority, of a Province is, of course, the Governor by definition in another part of the Act— extends to excluded and partially excluded areas therein, but, notwithstanding anything in this Act, no Act of the Federal Legislature or of the Provincial Legislature, shill apply to an excluded area or a partially excluded area unless the Governor by public notification so directs… Further provisions of a similar kind are described in further subsections of that section. The last subsection says: The Governor shall, as respects any area in a Province which is for the time being an excluded areas"— that is to say, a wholly excluded area— exercise his functions in his discretion. It may be said that that deals only with a wholly excluded area. That is quite true, but another section of the Act—namely, Section 59 (1) (e), says that in the exercise of his functions the Governor snail have as a special responsibility: The securing of the peace and good government of the areas which by or under the provisions of this Part of this Act are declared to be partially excluded areas. In subsection (3) of that section it is laid down: If and in so far as any special responsibility of the Governor is involved, he 738 shall, in the exercise of his functions, exercise his individual judgment as to the action to be taken. Therefore, while I admit there is no actual definition of a partially excluded area in so many words, I hope my noble friend who put this question to me will be satisfied that, under the various sections of the Act to which I have referred, there is a complete definition both of the excluded and of the partially excluded areas.
In conclusion, I need only, perhaps, say a word as to the extent and nature of the excluded and partially excluded areas. So far as it is possible to judge, if your Lordships give your assent to this Order, something like 50 per cent. of the total number of people in India who may be described as aboriginal tribes or as very primitive peoples will come under the operation of this Order. Of course, it is not possible to grant to backward people who are living scattered among people in more advanced areas quite the same measure of protection as is provided for those who live together in specified areas. The criterion which the Government have accepted for a partially excluded area is this: that it shall be inhabited by a preponderance of backward or primitive peoples; that it shall be of such a size that special legislation can conveniently be applied to it; and that it shall be susceptible, without inconvenience, to special administrative treatment. This further condition is laid down, that the boundaries of such areas shall be defined in easily intelligible terms—that is to say, the boundaries shall be easily recognisable.
The number of totally excluded areas is not great. They are to be found chiefly on the border tracts of Assam, but there is one considerable tract in Bengal, known as the Chittagong hill tract, which is also included in the category of wholly excluded areas and about which I might say perhaps a word. It is a district which is well known to me personally, and I have no doubt it will be well known to my noble friend Lord Lytton. It is inhabited by very primitive peoples, living in heavily wooded and mountainous country. For generations past they have lived and been administered under their hereditary Chiefs, who rejoice in the somewhat picturesque names of the Chakma Chief, the Bomong Chief, and the Mong Chief. 739 I am quite satisfied from my personal knowledge of this district that, though it is actually part of the Presidency of Bengal, it is essential in the best interests of these primitive peoples that their districts should be declared to be wholly excluded areas. Perhaps, in support of my contention, I might give your Lordships very briefly the opinion of an Indian whose official duties necessitated that he should reside for a considerable period amongst these peoples in the Chittagong hill tract. He pointed out that, in their simplicity, they are very liable to suffer when they come into contact with the more sophisticated peoples of the plains, and he urged very strongly that measures should be taken to protect them against exploitation by their more sophisticated neighbours. He described the effect of allowing exploitation by the peoples of the plains. But if I may I will read his own rather picturesque language: The effect of this would almost be akin to that of putting the innocent lamb and the rapacious wolf into one cage. Then, not quite satisfied, perhaps, with the picturesqueness and impressiveness of that illustration, he went on to produce another, and he said: Perhaps an example better than this would be that of a parasitic creeper which has no root in the soil— referring here, of course, to the people from the plains— but which envelops the foliage of a vigorous tree in a veritable net, flourishes by slowly but surely sapping the life streams of the tree and reducing it in time to dead wood. He went on to express his opinion that the only safeguard for the Chittagong hill tract would lie in turning it permanently into a totally excluded area.
I do not think there is any other totally excluded area upon which it is necessary for me to make any comment, nor do I think there are any of the partially excluded areas which call for particular notice. The material on which the Government have come to their conclusions in this Order is in your Lordships hands, a very considerable mass of material, as those who may have perused it will be ready enough to agree. The Government of India have also expressed their views on this material in a Despatch of great lucidity, and, if I may say so, a Despatch which bears upon its face the stamp of great care. I should like, if I may, on my own behalf, and I should hope on 740 behalf of your Lordships also, to take this opportunity of expressing my gratitude to the Government of India for the great care and for the ability with which they have discharged what certainly has been a very laborious task, a task which was laid upon them by Parliament in this country.
I have only one general observation to make with regard to the partially excluded areas as a whole, and I make this observation because there seems to be a misunderstanding, not only in this country but even in some parts of India, as to what the actual effect upon the people who live in the partially excluded area is. If they live in a partially excluded area they are not cut off or segregated in any way from normal intercourse with the people who live in the ordinary districts of the country on their borders. The broad effect of declaring an area to be a partially excluded area has been put very concisely by the Government of India in their Despatch. What they say is that the broad effect of partial exclusion is simply to subject the normal legislative and executive jurisdiction of the Province in selected areas to a degree of personal control by the Governor. I do not think that anybody could put more concisely or more lucidly the effect of declaring an area to be a partially excluded area than has been done in these words. I hope that I have been able to satisfy your Lordships, first of all, that there is an essential necessity for treating these backward parts of India in the special way proposed; and, secondly, that the actual areas which are to be so treated have been defined after an exhaustive examination with great care by the Local Governments and the Government of India.
Your Lordships will see that there are three Amendments which I would commend to your Lordships when I ask you to agree to the Draft of this Order. The first Amendment is in the Schedule, Part II, page 2, line 36, to leave out "Sherpur and Susang Parganas" and insert "Dewanganj, Sribardi, Nalitabari, Haluaghat, Durgapur and Kalmakanda police stations". I can explain in a sentence to your Lordships the necessity for that Amendment. The Sherpur and Susang Parganas are in the Mymensingh district of Bengal and lie on the borders of the Garo hills, the Garo hills being a tract of country inhabited by a primitive people 741 known as Garos. A considerable number of the Garos live within the Sherpur and Susang Parganas, but they do not by any means fill the whole of those two Parganas (Pargana being, of course, a geographical term for a small district). It is unnecessary therefore that the whole of those two Parganas should be declared to be a partially excluded area. The Garos whom it is sought to protect live actually in the police stations which are named in the Amendment, and it is for that reason that I would ask your Lordships to agree to that Amendment. The other Amendments are really of a drafting character. They are moved in order to put right a slight error in phraseology which I adroit to your Lordships was due in the first case to an incorrect deciphering of a cipher message. They are, therefore nothing except drafting Amendments to put right the error in wording which occurs in the original Draft. With those observations—and I apologise to your Lordships for having taken so long—I beg leave to move the first Amendment.

THE LORD CHANCELLOR
Unless there is to be some discussion I think it might be better to move together the Draft Order and the Amendments appearing on the Order Paper.

§ THE MARQUESS OF ZETLAND
I agree and I beg to move accordingly.

§ LORD RANKEILLOUR
My Lords, as the noble Marquess has referred to me, may I say that I congratulate him on the lucidity with which he has explained these provisions with regard to partial and wholly excluded areas, and at the same time I condole with him on having to make the explanation of what a partially excluded area is. I defy anybody who was confronted with the term 742 "partially excluded area" for the first time to make out from the Government of India Act what it was. Legislation by reference is bad enough, but legislation which requires a student first to read up 92 clauses of an Act and then, when he thinks he has mastered those 92 clauses, have to refer back to the 52nd, is, I think, a deplorable piece of drafting. If this Parliament lasts its full life and the noble Marquess is still in the place which he adorns and in full health and strength, I feel sure he will be obliged to bring in an Amending Bill, and if he does so I trust he will find a fitting definition of this particular term. On merits I would only say that many of us in the Joint Select Committee were very apprehensive of the effect on aboriginal tribes of a sudden inrush of modernism in the form of a new democratic Provincial Government. We were in doubt as to whether the scope of the excluded areas was wide enough, but now, I understand, those who have given special consideration to it from practical personal knowledge are satisfied on the whole that it is so. Therefore I congratulate the noble Marquess on having made this extension.

LORD STRABOLGI
My Lords, I do not want to follow the noble Marquess the Secretary of State in the very interesting account he gave of the excluded and partially excluded areas. I want only to ask him a question. The noble Marquess said that the material was in our hands, and therefore this information which I seek is perhaps readily available. If that is the case I should like to know what are the populations and areas of the excluded areas and the partially excluded areas. If the information is not readily available, and it is not convenient to give it now, I shall be very glad to put down a question for a written answer, so that we may have the information. I think it would be of interest to a great many people, and not only to those in your Lordships' House.

THE MARQUESS OF LOTHIAN
My Lords, I rise only to support in a few words the Motion moved by the noble Marquess the Secretary of State. As one who sat through not only the discussions in your Lordships' House and the proceedings of the Joint Select Committee, but through three years continuous Round-Table Conferences, I know the 743 immense amount of thought, consideration and anxiety which was given throughout that time as to how to deal with adjustments between what I would call the civilised and the aboriginal parts of India. I should like to add that this Act seems to me to carry out as accurately as possible the intentions laid down in the Round-Table Conferences and by the Joint Select Committee. Therefore I hope your Lordships will pass the Motion.

§ THE MARQUESS OF ZETLAND
My Lords, I am sorry I cannot at the moment give the noble Lord, Lord Straholgi, the information for which he asks, but if he will be good enough to put down a question I shall be very glad to supply him with it. It is not easy to carry the figures in one's mind. I beg to move.