§ Order of the Day for the Second Reading read.
THE SECRETARY OF STATE FOR INDIA AND BURMA (LORD PETHICKLAWRENCE)
My Lords, the object of this Bill is to deal with a somewhat technical and complicated matter, and I think it will meet the convenience of your Lordships if I give a very brief description of its objects. Should any of your Lordships wish for any further explanation I will do my best to furnish it. The purpose of the Bill is to remove doubts as to the validity of certain emergency powers exercised by the Government of India during the war. In the Government of India Act, 1935, a rather unusual method was adopted for dividing those forms of legislation which ought to be carried at the Centre and those which belonged to the Provinces. Generally, I imagine, it is usual in such cases to specify 2 certain forms of legislation which should be dealt with either by the Central or by the Subordinate Legislatures, and having done that, to place all residuary objects of legislation with the other body. That was not done in the Government of India Act of 1935. What was done was to put into the Seventh Schedule of the Act two lists, one for the Central and one for the Provincial Legislatures, and as to any possible items that remained over after these two lists had been exhausted, to give the Governor-General powers to allocate them as he might subsequently desire, either to the Centre or the Provinces.
The Government of India Act, 1935, gave certain further powers to the Governor-General in the event of an emergency. By declaring an emergency he was entitled to act at the Centre on behalf of the Provincial Legislatures and to pass legislation at the Centre which would normally belong to the Provinces. It was under these powers that when the emergency broke out in 1939, the Governor-General produced the Defence of India Act and under that Act Rule 75A was made which gave the Government of India powers to requisition moveable property. The power that was given under this Rule was never called into question until recently. It was no doubt in the minds of people that it was a reasonable power that was required, and that it was in accordance with powers taken in this country. No one supposed that it was the intention to have lesser powers in India than were given in this country. A number of actions took place under these powers on the assumption that they were 3 correct, but recently the validity of these powers has been called into question. The ground on which the question has been raised is whether there was power to deal with matters that might not be held to be within either of the two lists, either for the Centre or for the Provincial Legislatures.
I ought to tell your Lordships that three cases have arisen in the Courts. In one of these the application on the ground of invalidity was upheld. In the other two cases the decision of the Government of India was sustained against the applications. They were all heard in different High Courts. In two of them appeals have been lodged which would, in the normal course, go to the Federal Court for final decision. It is to remedy that state of affairs that this Bill is introduced. It cannot be carried in India for reasons that I will explain if it is desired. I will only say for the present that it cannot be carried in India, but it has to be carried out by an Act of this Parliament. The main object of the Bill is to give the Governor-General the power to make the Rule for which everybody supposed that he had the power and upon which the Federal Court has not, so far, adjudicated.
It only remains for me to make one or two additional remarks. In the first place, there is no question that when moveable property was taken by the Government of India, under the alleged powers, compensation was duly paid for what was taken. It is also the case that it is not only the particular power for taking moveable property, which has already been dealt with and which might be called into question: it is conceivable that there are other powers in this Rule which might be called in question in the future. Therefore, it was absolutely essential that the doubt should be removed and this Bill proceeds to do it. I am quite aware that neither in this House nor in another place does retrospective legislation find any favour. It is a thing which has to be avoided as far as possible, but cases arise occasionally where it is essential and unavoidable that retrospective legislation should be carried. It is with that object that I am asking your Lordships to give a Second Reading to this Bill.
4 I should like to say one thing more before I sit down, and that relates to Clause 2 of the Bill. It was felt that every thing possible should be done to remove any hardship which might fall on a litigant who had won his case in the High Court and who had been deprived of opportunity of upholding the decision which he had obtained. Therefore, Clause 2 endeavours, as far as possible, to put him right in so far as costs and in so far as any costs he may have incurred due to his having assumed that the decision would be upheld when, in fact, it is overruled, as it were, by the proposals in this Bill. I beg to moved.
§ Moved, That the Bill be now read 2a.—(Lord Pethick-Lawrence.)
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.