INDIA (MISCELLANEOUS PROVISIONS) BILL. [H.L.] (Hansard, 4 July 1944)

§ THE EARL OF MUNSTER

My Lords, this small Bill of seven clauses, which I ask your Lordships to read a second time, will not take more than a very few moments. It will not in any way, I think, prove controversial, for it merely contains some small miscellaneous amendments to the Government of India Act, 1935. In 1941 Parliament approved an Act which extended the maximum permissible life of the Provincial Legislative Assemblies from five years to a period expiring twelve months after the end of the war, but that Act did not touch the Legislative Councils, or Upper Houses as they have come to be called, in the six Provinces, namely Madras, Bombay, 632 Bengal, the United Provinces, Bihar and Assam, where they exist. The Legislative Councils are permanent bodies not subject to dissolution but subject to a rotational system of election so that one-third of the members retire every third year. Although the provisions of the principal Act governing Legislative Council elections have been suspended in those Provinces temporarily administered under Section 93, elections have been held in Bengal and Assam, where Ministerial Governments are functioning. The suspension of elections in Section 93 Provinces has upset the rotation system which, as I have just pointed out, provided that one-third of the members should retire every three years, and it is now proposed, under Clause 1 of the Bill, that the period of office of members of the Legislative Councils in Section 93 Provinces shall be extended by the period for which the proclamations are in force, plus an additional period up to twelve months so as to enable the elections to be held at a suitable time of the year.

Clause 2 of the Bill makes it clear that if a Judge of the High Court is transferred to another High Court or to the Federal Court, he shall not retain his office of Judge of the High Court from which he was transferred. This is the only clause of the Bill which will be retrospective. I might mention that there is a similar provision in Section 10 of the Supreme Court of Judicature Act, 1925, applicable to High Court Judges in this country. Clause 3 of the Bill amends Section 314 of the principal Act under which the advisers of the Secretary of State shall not be more than twelve nor less than eight in number. This was a transitional provision pending the establishment of Federation. In the circumstances of war it is now proving increasingly difficult to ensure that the statutory minimum of eight can be maintained. Travelling arrangements between India and this country are severely limited and, furthermore, those who might be appointed as advisers are fully engaged on important work connected with the war. It is therefore proposed that the statutory minimum of eight may be reduced to five, but it is the intention of my right honourable friend to work to the higher figure as long as possible.

I now pass to Clause 4 of the Bill. Under the principal Act leave of absence 633 cannot be granted to the Viceroy or the Commander-in-Chief more than once during their period of office, thus, should the holders of these important posts be called outside India for consultation, they would, as the Act now stands, have automatically surrendered their right for any period of lease during their tenure of office. My right honourable friend, after consultation with the Viceroy, who is in agreement, is of the opinion that it may be both necessary and desirable for the Governor-General and the Commander-in-Chief to leave India for brief periods for the purpose of personal consultation either here in London or somewhere nearer the shores of India. There can be no doubt that under the strain of present conditions personal contact is most useful.

It is intended to amend Section 86 of the Ninth Schedule of the principal Act so that leave of absence on duty will not impair the statutory right of the Viceroy and the Commander-in-Chief to go on leave for reasons of health or private affairs once during their period of office. Clause 5 of the Bill amends Section 87 of the Ninth Schedule by removing the obligation to appoint an acting Commander-in-Chief during the Commander-in-Chief's absence on duty. It will be generally agreed that during his brief absence from the country there is no practical necessity for appointing a deputy. The House will, however, notice that an acting Commander-in-Chief will still be appointed when the Commander-in-Chief is granted leave of absence for reasons of health and private affairs, and that whenever the Viceroy is absent for any reason whatever, an acting Governor General must be appointed. I beg to move.