INDIA AND BURMA (EMERGENCY PROVISIONS) BILL. (Hansard, 27 June 1940)

§ THE PARLIAMENTARY UNDERSECRETARY OF STATE FOR INDIA AND BURMA (THE DUKE OF DEVONSHIRE)
My Lords, I beg now to move that this Bill be read a second time. The history and origin of the Bill are as follows. The Government of India recently found it necessary for their defence arrangements to take the power to conscript Europeans in India for military service. They found, however, that this was beyond their powers, which were limited by Section 110 of the Government of India Act, 1935, which among other things bans the making in India of "any law which would affect the Army Act." The Government of India accordingly asked my right honourable friend the Secretary of State to secure the necessary Parliamentary legislation to enable them to do this. My right honourable friend felt that it was only common prudence, having regard to possible developments in the war situation in the near future, to bring in a Bill of rather wider scope, and instead of merely empowering the Government of India to conscript 709 Europeans, to take into account the possibility either that the Government of India might find it temporarily impossible to communicate with His Majesty's Government in this country, or that action urgently required here for Indian purposes which could under the Act only be taken here could not in fact be taken at all or could not be taken in due time. The only means of meeting that situation is to enable the Governor-General himself, as a temporary measure and during the existence of this possible emergency, to take action himself, and that is what this Bill to which I ask the assent of your Lordships' House actually does.
The matters that lie beyond the scope of any authority in India fall into three categories, which are covered by the first three subsections of Clause 1 of the Bill. They are, first, the making of those appointments which are reserved for His Majesty—an obvious instance is that of a Governor of a Province; secondly, the amendment of Orders in Council made under the Act which, as the Act stands, can only be amended by the King in Council after the draft Amending Order has been approved by both Houses of Parliament, and the amendment of Rules relating to members of certain of the public Services in India which, under the Act, can be amended only by the Secretary of State himself; and, thirdly, legislation on matters which, under the Act, lie beyond the competence of any Legislature in India as "affecting" the Army Act, the Air Force Act or the Naval Discipline Act, and which therefore can in normal times be enacted only by this Parliament.
To give a concrete example of each of these categories, as regards appointments, circumstances might arise in which, if a Provincial Governor in India suddenly died, it was found to be impossible in practice to secure a Warrant under the Sign Manual appointing a successor. In that event but for the provisions of this Bill it would be impossible for the very important functions of a Governor to be carried out, or easily to be carried out, by anyone. Under this Bill the vacancy would be filled by an appointment made by the Governor-General instead of by the Secretary of State. The difficulty does not arise in the case of the Governor-General, since there is statutory provision for his place to be filled in the event 710 of sudden death. As regards Rules and Orders in Council, it might be found to be vitally and urgently necessary in order to meet circumstances arising out of the war that some provision in the large body of subsidiary legislation under the Act, consisting of Orders in Council and of Rules made by the Secretary of State, should be amended. As your Lordships will remember, the numerous Orders in Council made under the India and the Burma Acts and any amendments of them are peculiar in that they have to be approved in draft (and may be amended) by both Houses of Parliament (and, incidentally, examined by a Committee of your Lordships' House) before consideration by the Privy Council. Without this Bill, if such a breakdown of communications should occur such amendment would be impossible, and the Bill makes it possible for the Governor-General to make the necessary amendment.
I have already given your Lordships an example of the kind of case which might arise about legislation. Here the proposal is not that the Indian Legislature should be empowered to pass a Bill notwithstanding that, in the words of the Act, it would "affect the Army Act, the Air Force Act or the Naval Discipline Act," but that the Governor-General himself should enact the necessary measure under his ordinance-making power, the six months time limit which governs him at the present time being removed. Your Lordships will readily appreciate the reasons for that. It would clearly be undesirable that an Act conscripting Europeans in India should have a duration of only six months, and the same may well be the case with other measures relating to defence. Subsection (4) of Clause I brings the Governor-General directly under the statutory control of the Secretary of State in all his operations under this Bill for so long as such control is physically possible.
Clause 2 repeats for Burma, with the necessary variations in references, the provisions of Clause 1 which apply to India. Clause 3 confines the operation of the Bill from the date of its passage to a date to be signified by Order in Council, and Clause 4 provides that the blank cheque which this Bill presents to the Governor-General and to the Governor of Burma will not in fact be filled in and presented for payment until the necessity 711 has actually arisen. It provides that so long as reference to the Secretary of State is possible such reference is to be made, and it will rest with the Secretary of State to decide whether, in the particular circumstances of the moment, the ordinary procedure can be followed, or whether the powers provided by this Bill should be exercised and the action required taken in India or Burma. The provisions of subsection (2) of Clause 4 are modelled on similar provisions in the Government of India Act, and the idea is to prevent application to the Court for injunctions in India or Burma on the allegation, for example, that the Secretary of State ought to have been and could have been consulted before the action was taken, and that therefore the action was invalid.
It is quite obvious that the powers which this Bill confers on the Governor-General of India and the Governor of Burma are theoretically very extensive indeed, and that the control which was intended to be kept by Parliament in its own hands over the operation of the Government of India Act is theoretically wiped out. But I have very little doubt that your Lordships generally will agree that if the circumstances which the Bill is intended to deal with should in fact arise, we should be well advised to trust the Governor-General and the Governor of Burma to exercise their nominally wide powers prudently and wisely rather than run the risk of possible enemy operations placing very serious difficulties in the way of carrying on the efficient administration of India and Burma. There has been, however, a little misunderstanding about this Bill in certain sections of the Press, which foreshadowed some important constitutional change. There is really no such change. This is really a measure of insurance designed to give the Governor-General of India and the Governor of Burma certain powers in the event, and only in the event, of its becoming physically impossible for the Secretary of State to use these powers. In these circumstances I commend the Bill to your Lordships.

LORD STRABOLGI
My Lords, my right honourable and honourable friends in another place examined this Bill care- 712 fully and came to the conclusion that it was necessary, desirable, and unobjectionable, and my noble friends take the same view in your Lordships' House. I only have to thank the noble Duke for the very clear explanation he has given.

THE MARQUESS OF CREWE
My Lords, I have no idea of offering any form of opposition to this Bill. On the contrary, I believe it to be a most necessary measure, as the noble Duke has so clearly explained. It must be seen by all the people of India to be an advantage that, in certain circumstances, the strength of the defence of India should be increased by some such measure as this if it proved to be necessary. I can conceive, for instance, that in some circumstances it might be thought desirable to move to some scene of operations a part of the British troops now in India. In such a case I can well believe it would be thought, possibly, desirable to use the powers included in this measure by adding to the defence forces of India a number of civilians of the British race who would, no doubt, be thoroughly glad to take part in the defence of the country. The functions of the British troops in India are, as we all know, to defend India against any act of aggression from outside and, possibly in the last resort, to help to secure internal peace in cases, which we hope are not at all likely to arise, where the police force is not entirely adequate to carry out the instructions of the Government. In these circumstances I feel sure the people of India will welcome the measure, and I have no doubt that both the Government of India and the Government of Burma will have seen, by consultation with those who represent opinion in India and in Burma, that the people of India and Burma in a matter of this kind will work in close contact with the two Governments.