HL Deb 14 February 1946 vol 139 cc555-67

Order of the Day for the Second Reading read.

4.5 p.m.

THE SECRETARY OF STATE FOR INDIA AND BURMA (LORD PETHICK-LAWRENCE)

My Lords, I rise to move the Second Reading of this Bill, the purpose of which is to amend the Government of India Act, 1935, with respect to the qualifications of members of the Governor-General's Executive Council, to extend temporarily the powers of the Indian Legislature to make laws, to amend subsection (4) of Section 102 of the said Act as to the effect of laws passed by virtue of a Proclamation of Emergency, and for purposes connected with the matters aforesaid.

There are two matters principally dealt with in this Bill; the reason for introducing it to your Lordships arises from two separate causes. Your Lordships will remember that in September last an announcement was made by the Viceroy with regard to certain intentions of His Majesty's Government after the holding of the provincial elections. One of those related to the reformation of his own Executive Council; he hoped to base that Council upon the political Parties in India and to be in accordance with the leaders of Indian opinion. Clause 1 of this Bill is designed to meet a situation with regard to that which may arise. Under the present law, which is contained in Section 36 (3) of the Government of India Act, 1919, as it is continued by Schedule 9 of the Government of India Act, 1935, there is a provision requiring that three members of the Governor-General's Executive Council shall be persons who have been ten years in the service of the Crown in India, and that one member thereof shall be a barrister, an advocate or a pleader.

This existing state of the law imposes a limitation on the Viceroy which it may be desirable—I emphasize the word "may"—to be without in the event of the Government of the Viceroy altering the character of the Executive Council. The purpose of Clause 1 of this Bill is to remove that limitation. I would draw your Lordships' attention to the fact that this is only permissive. It does not say that the Viceroy shall in fact have an Executive Council which does not fulfil those requirements, it only removes from him the limitation which compels him to have a Council with those limitations. In view of the importance of the discussions which are to be held in India at a very early date, I recommend this clause to your Lordships in order to get out of the way an obstacle which might result in an unsatisfactory conclusion to those discussions. So much for Clause 1, which really stands in a category of its own.

I now come to the other clause in the Bill, which arises out of a different set of circumstances. I think it is possibly known to your Lordships that it is the intention of the Governor-General to revoke the Proclamation of the Emergency, which he issued in 1939, on April 1 next. As a result, the Government of India will lose from that date their executive powers in the provincial field. Central legislation in the provincial field will lapse six months later, that is, on October 1, 1946. This involves certain consequences which seem to the Governor-General undesirable unless amended, as we propose, according to the clauses of this Bill. Much the most important question is that of food, but food does not stand alone. There are also other matters of trade set out in Clause 2 which the Viceroy would, unless the present Bill be enacted, lose the power to co-ordinate. He would be unable to co-ordinate the distribution of commodities in short supply on an All-India basis. In view of the facts which have just come to light about the grave shortage of food in certain parts of India, I am sure that your Lordships will appreciate the necessity to continue the central power to make this distribution on an All-India basis.

Clause 2 of the Bill enables the Viceroy to do this for the period which is set out in Clause 4—to which I propose to make subsequent reference. Clause 3 deals with the matter of requisitioned land. Your Lordships will no doubt remember that not very long ago—I think it was during the life of the Coalition Government, and, therefore, it was done with the consent of all Parties—we, in this country, decided that it was necessary to make provision for the retention of land which had been requisitioned and not to restore it immediately to the owner directly the powers under the Emergency ceased, and that we did in an Act of Parliament.

Precisely the same set of circumstances arises in India. There is land which has been requisitioned and which the Government in India will have either to acquire or to return to its original owners, but, after consideration of the matter, it seems to the Government of India that the period that would be allowed, if no amending legislation were passed, would be too short to enable satisfactory arrangements to be made. Therefore, in Clause 3 of the Bill, it is proposed to retain under requisition lands and buildings until the Government of India have had adequate time to decide the ultimate fate of those lands and buildings and to complete the necessary negotiations. I would emphasize to your Lordships that this Clause 3 of this Bill does not give the Government of India power to requisition or acquire any land or buildings which are not already under requisition. It only deals with land or buildings which are at present under requisition, and enables the Government to retain them under requisition until it seems appropriate to acquire them or hand them back, under terms, to the owners.

Clause 4 deals with the period of time during which these powers are given to the Government of India. In the first place they run for one year only beginning with the date on which the Proclamation of the Emergency in force at the passing of this Act ceases to operate. But the Governor-General, by public notification, can extend the period up to two years beginning with that date. That is an extension of a further year, and, provided that a Resolution approving the extension be carried in both Houses of Parliament, the period can be extended for a further period up to, finally, five years from the date on which the Proclamation ceases to operate.

And now just a few words about a rather complicated clause—Clause 5. This clause has been included in order to remove a doubt arising under Section 102 (4) of the Government of India Act, 1935. When, during the Emergency, central legislation has been enacted, part of it has sometimes been in exercise of powers which the centre permanently possessed, part of it sometimes in exercise of the temporary powers in the provincial field. When these temporary powers lapse, it might be a matter of doubt whether the legislation which is imposed lapses so far as both parts of those provisions are concerned, and the object of Clause 5 is to say that any legislation passed shall not lapse so far as it deals with powers which could always be carried out by the Government of India, and that it shall only lapse in regard to powers which are only conferred upon it during the Emergency.

I think that those are the principal points of the Bill as it appears before you. But I think that your Lordships would wish me to add one word. Since the Bill was drafted, it has been discovered that Clause 3, in the precise form in which it appears in the printed Bill, does not entirely cover the points with which it was intended to deal, and I shall have to ask your Lordships when the Bill reaches the Committee stage to make certain changes in the drafting of Clause 3. But nothing in those Amendments will affect the principles which I have described to your Lordships in my efforts to explain that third clause of the Bill. That is a brief and, I hope, fair description of the powers which it is sought to take under this Bill, and I move that it be read a second time.

Moved, That the Bill be now read 2a.—(Lord Pethick-Lawrence.)

4.17 p.m.

VISCOUNT SIMON

My Lords, I am sure that your Lordships are grateful to the Secretary of State for explaining the meaning and effect of the clauses of this Bill. They are, in some respects, inevitably a little complicated. He pointed out at the beginning—and it was important to observe it—that really the Bill deals with two distinct classes of subject. Clause 1 stands by itself, and involves a constitutional change of some consequence. The other clauses—Clauses 2, 3 and the following clauses—are really temporary provisions and adjustments which it is felt necessary to make in view of the situation now existing and consequent upon the time of the war.

Perhaps I might make an observation on my own account about the second of those two groups. The thing which I think your Lordships would wish to notice is that they are governed by Clause 4 which shows that the change they make is intended to be temporary. But the change so made will last, in the first instance, for two years from the date indicated—which I gather is not very far off—and even if there be a desire to continue this temporary situation for a little longer there is a positive limit. It is laid down that the matter shall not continue for more than five years from the date on which the Proclamation of Emergency ceases to operate. These provisions are, in their nature, temporary.

If I may presume to say so—it is within the knowledge of those who know this very complicated subject—they seem to me to be thoroughly justified. The one which is of considerable general interest to all those in this country who follow this complicated Indian problem as closely as they can, is the one which confers upon the Central Legislature certain powers which in normal times would belong, I think, only to the Provincial Legislatures. The necessity for them in recent times has been quite evident. If the food situation in India which has been so critical was to be dealt with effectively, it was, as I understand it, felt by the authorities—and I think we should be all disposed to agree—that it must be within central hands.

Otherwise a particular Province would have the exclusive right of dealing with the food situation within its own boundaries, and distances are so great and indeed the interests of different Provinces are so varied, that unless the Central Legislature and Central Government have also got the power of dealing with foodstuffs (which rather oddly are put in the middle of the list of things), unquestionably the terribly difficult task which has assailed the Indian authorities in the matter of the food crisis could not have been with equal efficiency surmounted. I think I am right in saying that this does not take away any power; it merely says that the Central Legislature also has the power. It will follow that if both the Central and Provincial Legislatures passed enactments about exactly the same matter and if they happened to be in any sort of conflict the Central Legislature would prevail. I think the Secretary of State said that the provision was to enable the Viceroy to make these arrangements. That may, in substance, be right but the actual provision is an extension of the Legislative powers and I presume the legislature will pass, perhaps at the Viceroy's suggestion, some law which will confer on the Viceroy those powers which are needed. All that seems to me to be completely justified and I do not imagine that your Lordship in any part of the House will have any adverse comment to make.

The same thing is true of the clauses which follow. Clause 5, the little clause which looks so very difficult, becomes quite simple if one takes the trouble to look at Section 102 of the Government of India Act. When one looks at it one sees that whether deliberately or perhaps by the chance of drafting, whereas subsection (2) of Section 102 contains words to the effect that the Central Law shall prevail over the Provincial Law and the Provincial Law shall "to the extent of the repugnancy" be void, the subsection immediately following it does not contain any words to that effect. On that, all that Clause 5 does here is to put those words in, very sensibly so.

I return to the first clause, which I think is far the most important part of this Bill, if we regard it as a constitutional or political provision, and it is a provision of very considerable importance indeed. Up to the present, and certainly going back to the Montagu Reforms if not before, there has been as part of the Constitution of British India the provision that the Governor-General's Council, whatever its numbers and however else composed, must contain three members at least who have the qualification of having served for at least ten years in the service of the Crown in India. That, of course, does not mean Englishmen, Scotsmen or Irishmen as against Indians. It has nothing to do with the subject of Indianisation. The test is not that but: whether these individuals have served for ten years in the service of the Crown in India or as Indian civil servants. That Service used in the past to be a very great Service, and includes some most accomplished Indians as well as people who come from this country. But the fact was that certain members of the Governor-General's Council—the Minister of Finance (and the Finance of India is no small matter) was one, the Home Member was another, were necessarily people who had been trained in the administrative service of India under the Crown.

That is the provision that this first clause seeks now to remove leaving it, as the Secretary of State said, not as a matter of course but of discretion that individuals might be appointed who had not had that experience. I know that is one of the changes, one of the greater facilities which the Viceroy has had in mind, and indeed that idea has been one which has been in the minds of many of us. The difference is, I think, this—I mention it so that your Lordships may have it in mind—that as the proposal had been regarded in the recent past, from the time when I was in the Government and took a special interest in these things, as for instance when Sir Stafford Cripps went out with his Mission, the idea was to appeal to the great communities in India to come together to devise for themselves and for India a new and advanced system of Government, with the assurance that we would ourselves in the British Parliament gladly take it and put it into law. I think the idea was that this sort of change, abolishing the necessity of having anyone in the Executive who was trained in the Service of the Crown, should come about at the same time as the working out of the new Constitution. I must confess that for myself—I speak only for myself in this matter although I am most deeply interested in the progress of the Indian Constitution—although some may question whether we have been wise in the past in making what may be regarded as quite minor concessions piece-meal, I think there was a good deal to be said for the view that it would be more effective and would add to the Viceroy's authority, if when a change came a number of things went with it at the same time. I doubt if these piecemeal concessions have had all the recognition they deserve. All the same, the Secretary of State is no doubt himself satisfied. He is responsible in these matters to the House and not the Viceroy at all. The Viceroy has not to come here to tell us that this or that should be done. His Majesty's Government are responsible. I think, if that is so, your Lordships will probably take the view that this is a clause which so submitted ought to be accepted and passed by Parliament.

I notice that the Secretary of State more than once in his speech spoke as if the Viceroy made these appointments. I would most respectfully venture to offer a correction. Those appointments are not made by the Viceroy at all. Members of the Governor-General's Executive Council are appointed by His Majesty, by warrant under the Royal Sign Manual. While, of course, every appointment and every change of appointment in the Governor General's Council is made as a result of consultation between the Governor General and the Secretary of State, with the approval of the Cabinet, as things are, it is not a correct constitutional statement to say that it is the Viceroy who makes these appointments. Things would change very much if the progress in constitutional reform which so many of us would like to see can be brought about. What the position of the Viceroy would be in such a situation is indeed one of the great questions involved, but I hope it may fall into place with some new and agreed constitution, for which we most fervently pray.

I hope your Lordships will forgive me for making these remarks, which have been made in the most sympathetic spirit. Nobody can have spent such a long time as I have in trying to understand the Indian situation and endeavouring to contribute what little I could to it without being profoundly interested in anything which affects the future of that great country.

4.35 p.m.

VISCOUNT SAMUEL

My Lords, I do not propose to make any observations with regard to the latter clauses of the Bill, but I would like to say a few words in support of the first clause, to which the noble and learned Viscount, who has just spoken, has directed his principal observations.

As to the general policy to be pursued in India, in this country all Parties and both Houses of Parliament are agreed. Ever since the Cripps Mission to India, and the offer that was then made, this country has definitely and irrevocably stated that it favours the fullest measure of Indian self-government, and the only delay that has been caused has been due to the fact that it was hoped the principal forces in Indian politics might agree on some form of Constitution to replace the present Constitution, or at least agree upon some Constitution-making authority which could draft such a Constitution. Meanwhile there is a state of transition or one might say of suspense.

When these matters have been discussed in your Lordships' House on two or three occasions, I have ventured to urge that the status of the Viceroy should be altered, and, instead of being both Viceroy and Prime Minister, he should be constituted rather as a representative of the Sovereign, as performing the functions of a constitutional Sovereign, and that he should be assisted by a Prime Minister, who should himself be an Indian, together with an All-Indian Cabinet. Whether that is practicable or not I do not know, but there certainly ought to be no statutory barrier to his Cabinet—the Governor-General's Council—being wholly Indianized. There is such a barrier in practice now in that there exists a statutory right for the Indian Civil Service to hold two posts in the Council together with a third post which is to be given to a person with certain legal qualifications. It is quite true these members of the Indian Civil Service need not necessarily be of British birth. They may themselves be Indians.

Nevertheless, the fact remains that this provision, which has been inherited from a previous era of Indian politics, does hamper the full freedom of the Viceroy in constituting a Cabinet which shall be fully representative of India and of the political forces of that country. Consequently, it is highly desirable that this provision should be removed. I confess I do not share the view which has been expressed by the noble and learned Viscount, Lord Simon. He is of the opinion that this change would better be held over until there is a general settlement, and should form one item in that settlement. I am afraid that would be regarded by the Indian politicians as merely continuing an existing provision of the law which is generally agreed not to be a desirable one for the sake of having a bargaining point when conferences are going on as to the establishment of a new Indian Constitution. I do not think myself that that is desirable. We had much better approach the matter frankly and without arrière pensée and say that this particular provision, which comes from a comparatively remote time in Indian history, should now be repealed, and, for my own part, thinking that this change is right in itself, I am also of the opinion that the sooner it is done the better. Accordingly, I cordially support the first clause of the Bill.

4.40 p.m.

LORD ALTRINCHAM

My Lords, I only want to add two or three words to what has fallen from the lips of my noble and learned friend, Viscount Simon, with regard to this Bill. We welcome and support this Bill. With regard to Clause 1, however, I am bound to say personally I share some of his doubts upon the advisability of making these piecemeal changes in very vital points of the constitution of the Government of India, and, while I have great sympathy with what the noble Lord, Viscount Samuel, has said, it does seem to me difficult to speak in terms of an Indian Prime Minister when you are dealing with an Executive Council which is not responsible to a Legislature, but responsible, as the Constitution at present stands, solely to the Viceroy, and it seems to me that the whole idea of the appointment of an Indian Prime Minister—which we hope will be realised in the near future—means going much further in the development of Parliamentary Government than has yet proved possible owing to the division of opinion between the two great religions. We hope to see that division healed at the earliest possible date, but until that time comes, and until the Council or the Cabinet is responsible to the Legislature, it does not seem to me to be desirable to make important changes in the Constitution. I have no doubt the noble Lord, the Secretary of State for India, has made this change in close consultation with the Viceroy.

We all know the Viceroy has to face a most difficult and delicate task in the next few months, and for my part I grudge him no extension of his power, and no limitation of his discretion, which he himself thinks will help him in the terribly trying months which no doubt lie ahead. So much with regard to Clause 1. With regard to the rest of the Bill, I am sure that in every quarter of the House the very deepest distress is felt at the main reason which has made this prolongation of central legislative powers necessary. That is the failure of the northeastern monsoon and the famine with which India is threatened. All we can do as to that—for there is a world shortage, as we know—is to wish all the servants of the King, the Viceroy, the Ministers, the Governors and the public servants of all kinds, God-speed in the task of dealing with this scourge. It is terrible that once again such a spectre should be stalking across the Indian scene, when so many other difficulties and troubles are about. Let us give our unreserved support to the Viceroy in anything he believes to be necessary in order to deal with that spectre.

There is only one question I wish to ask about the later clauses of the Bill. Clause 6, to which my noble friend the Secretary of State for India did not refer, speaks about the functions which the Governor-General under this Act is required to exercise at his own discretion. I shall be glad to be informed whether under this Bill we are extending in any way the powers which the Governor-General has to exercise at his own personal discretion. I do not question that this clause refers to anything except the public notification required for the extension period under Clause 4. But the phraseology of Clause 6 seems to be a little vague, and I shall be very grateful it the Secretary of State can explain the point as to whether that gives the Governor-General discretionary powers beyond what is required under Clause 4.

4.45 p.m.

LORD PETHICK-LAWRENCE

My Lords, I am not sure that I can give a categoric answer to the noble Lord on the spur of the moment, but I will endeavour to get such answer before I sit down. I should like to thank the two noble Viscounts and the noble Lord who has just sat down for their very sympathetic reception of this Bill, and, in particular, the noble Lord for his feeling remarks with regard to the grave disasters which make any of us who have any special relationship with India very sad at the present time. I want, more particularly, to refer to what the noble Viscount, Lord Simon, said with regard to what I said on Clause 2. Naturally, your Lordships will appreciate that the noble Viscount always speaks with great accuracy, and if I made the mistake which he attributed to me—and very likely I did—in using the word "Viceroy" instead of "Legislature" in regard to Clause 2, I accept his correction with appreciation. Perhaps I had better read out the opening words of Clause 2. They are: Notwithstanding anything in the Government of India Act, the Indian Legislature shall, during the period mentioned in Section 4 of this Act, have powers to make laws … etc.

VISCOUNT SIMON

I imagine they authorize the Viceroy.

LORD PETHICK-LAWRENCE

Therefore, if I fell into error over that, I apologize to the House. It was my desire not to read a brief, but to explain the thing in a straightforward fashion. Technically, also, the noble and learned Viscount is quite right in what he said at the end, although, in practice, the Executive Council is appointed by the Viceroy. With regard to Clause 6, the answer to the noble Lord is that it refers to the notification mentioned in Clause 4 and the previous sanction mentioned in Clause 2 (3). I think that is the real purpose of Clause 6, and I trust that that explanation makes the matter clear. If the noble Lord wishes to raise the matter again in Committee I will endeavour to give him a more intelligible reply.

On Question, Bill read 2a, and committed to a Committee of the Whole House.