I beg to move, in page 64, line 21, after "enact," to insert: or to any provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent Legislative List. The provisions of this Clause are directed to the question of repugnancy in connection with Laws which the Federal Legislature is competent to enact. It has been noticed that no provision is made for repugnancy in the existing law, and this is the first of four Amendments dealing with the same problem, really drafting Amendments, to effect that which, I think, everybody will agree is necessary, namely, to provide that repugnancy in connection with an existing Indian law shall be dealt with in the same way as repugnancy in connection with a Federal law which may be passed.

Amendment agreed to.

Further Amendments made: In page 64, line 23, after "law," insert "or, as the case may be, the existing Indian law."

In line 29, after the first "law," insert: "or an existing Indian law with respect to that matter."

In line 34, leave out "over the Federal law."—[The Attorney-General.]

Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."

5.48 p.m.

As some of us stated when the discussions began, we are not only anxious to fight the controversial portions of the Bill from the political standpoint, but are anxious to co-operate, where we can, in improving the Bill in matters which are not controversial, and it does seem to me that this Clause has not received sufficient attention, because it does not come into the main line of controversy that exists between hon. Members in this House. Sub-section (1) of the Clause uses the words: repugnant to any provision of a Federal law which the Federal Legislature is competent to enact. The object of that provision is that where a Provincial Legislature enacts a law which is repugnant to the Federal Legislature law, the Federal Legislature law shall carry the day. At first sight that seems to be very simple and to clear away all difficulties, but I submit that it will create a quite impossible position in practice. One has only to look at the concurrent list in the Seventh Schedule to see the variety of subjects upon which both Provincial Legislatures and the Federal Legislature can legislate. They include trust law, bankruptcy, poisons and many other subjects. I do not at the moment carry them all in my mind, and I do not want to discuss the Schedule, but I would draw attention to the very wide range of subjects in it. There are contracts, including partnerships, trusts, wills, and intestacy, marriage and divorce, actionable wrongs, newspapers, legal, medical and other professions, mechanically propelled vehicles, health insurance and European vagrancy.

The point I am making is that we are not dealing with a list concerned with local by-Laws, but with a list comprising subjects of the utmost importance to the life of the nation. If there were to be a diversity of law in the different States on trusts, bankruptcy, and contracts, it would, in practice, prevent India from becoming a great commercial country. Nothing could more hamper a new federation than a conflict of laws in the States. It may be said that by inserting a Clause to say that where a law passed by a Provincial Legislature is repugnant to the law of the Federal Legislature the latter shall prevail, we get over the difficulty, but that is not so, and I should be grateful if the Attorney-General would consider this point. If by "repugnant" we merely mean "different," why give the Provincial Legislatures power to legislate at all on those points? If they may not make a law on trusts and bankruptcy which is different from the Federal Legislature law, why give them the power to make a law at all? If they can make a law which is different, clearly "repugnant" does not mean "different," but something quite opposite, and I should like to hear more about what is meant by "repugnant." Supposing that the Federal law specifies certain grounds for divorce and that a Provincial Legislature were to pass a law with a further provision that divorce could be obtained, say, on the ground of desertion alone or for some other cause. Would that be repugnant to the law of the Federation—a mere addition to the grounds for divorce? Would it be possible for the Provincial Legislatures to vary the trust law of the Federal Legislature by making wide additions to it?

Take the question of bankruptcy. In this country the same law of bankruptcy applies in Yorkshire, in Lancashire, in Middlesex or any other part of the country, but might a legislature in one Province make additions to the law of bankruptcy, so that a man would be bankrupt in Travancore who would be perfectly solvent in Mysore? I am not putting these points forward in a jesting spirit, but because I think they are tremendously important. This question is apt to be ignored because it does not cut right across party controversial issues, but, all the same, it raises what I regard as legal points of primary importance, though they may not be appreciated at the moment by those who say "Let us get on to the next controversial part of the Bill where we can have a fight." At the start we shall have the Indian law running all through India. If this Federation is successful, as we alt hope it will be, though some of us do not think so, probably at the start the Governors and the Governor-General will exercise a unifying influence, and we shall not get a wide diversion of law; but gradually, as the Federation gets on its own feet, as the child gains the substance of independence, the Governors will more and more exercise the purely constitutional functions of the Crown and not the executive functions; and when that time comes, what is to prevent a whole mass of State law growing up in each State and hampering in the extreme ordinary business deals?

This is no question of England seeking to exercise a tyranny over India, but we may find the different States setting up their own legislative codes, and instead of having a unified system of law, we shall have a series of little systems of law all differing from one another and making it impossible for business people to understand where they are. A business man in one State may not know whether the law about advertisements and registration is the same in another State where he has a branch as in the State where his main business is situated. Still more those trading with India from outside will be at a loss to know whether their rights in one State are the same as in another. Nothing could be more likely to keep back India's commercial development. We have seen the difficulties which have grown up across the Atlantic, and the position in India will be far worse, because the powers under this Bill are far wider than those which exist in any American State. We may be creating a perfect confusion of law in India.

By this method of dealing with the matter we shall, at any rate, be doing a wonderful thing for the legal profession. Every time a State passes a law which is different from the Federal law we shall have questions brought to the courts for decision, and they will be carried to the Federal Court and, perhaps, to the Privy Council. Is not that a terrible burden with which to saddle a people whom we are starting upon a Federal career? With the greatest deference and respect, because this is not a point on which I wish to hamper the Government, I would suggest that they are seeking to do something which is impossible; they are seeking to give two legislative bodies the power to legislate about the same subjects. If one legislative body has power it is superfluous to give the second body such power. What is likely to happen is that neither of these two bodies will know where it stands, and that we shall have a perpetual wrangle between the Provincial and the Federal Legislatures as to what constitutes repugnancy. Particular points will constantly be taken to the courts, and we shall do a lot of harm to Indian life and to commercial life.

Although this may involve some trouble, although it may mean an alteration to this part of the Bill on the Report stage, the proper course would be to try not to give concurrent powers of legislation, but to divide the subjects between the Federal and the Provincial Legislatures. Certainly there might have to be a border line, because in this world nothing can be done on absolutely logical lines; but we can, at any rate, see that the indeterminate border line is as small as possible. At present the concurrent list comprises apparently more than half the subjects on which legislation may be passed, and I say it is far too wide as a field of legislation for two legislative bodies. I am afraid I have put my observations at greater length than I had intended, but we on these benches are anxious to make constructive, and not merely critical suggestions. We oppose the Bill fundamentally, but we recognise that the majority will put it through, and we are anxious to contribute suggestions towards making it a better Bill.

5.59 p.m.

I quite accept what the hon. Member has said as to his desire to improve the Bill although it is one which he dislikes, but I think he is here inclined to hark back to a matter with which the Committee have already dealt, and that is the Division of the legislative field into three parts—the federal field, the provincial field, and the concurrent field. We have dealt with that subject, and this Clause is merely machinery for providing for the circumstances which will arise when there is what is called repugnancy between a piece of provincial legislation and federal legislation. The ruling principle of the Clause is stated in Sub-section (1), the governing principle being that federal law will prevail over provincial law.

When you come to Sub-section (2), the matter that is dealt with is the machinery by which provincial legislation will be given precedence in the Provinces over any Federal law that is in conflict with it. I do not think that my hon. Friend has devoted sufficient attention in his speech to the means that are provided. Once there is the possibility of conflict between legislation in the fields which have already been marked out, you must provide machinery for disposing of a conflict or repugnancy between legislation in those different fields. My hon. Friend says that this is going to be a great day for lawyers. He overlooks the fact that the position at the present time is certainly not so simple as it will be after this Clause and other Clauses have been passed. At the present time there is a possibility of conflict which certainly will not exist when the Bill is passed, or at any rate there will not he so great a possibility.

The general idea is that in matters where it is desirable that there should be uniformity, the Federal Legislature shall deal with the matter, but it is obvious that a provincial legislature may have to make local adjustments or alterations to suit the circumstances of the Province. If I may take the illustration of law and order everybody will recognise the desirability of maintaining the uniformity of the great criminal code, but the Provinces will desire to legislate to suit the needs of the communities with which the provincial legislatures are concerned. My hon. Friend asks what "repugnancy" means—does it mean that on every subject upon which a provincial legislature legislates there will be repugnancy with the Federal legislation? That is not in the least possible. The provincial legislature wil[...] be dealing with some matters for which provision is not made in Federal legislation, but if there is conflict, a means is provided, so far as the concurrent field is concerned, in Sub-section (2) of the Clause. If my hon. Friend has any better method of resolving this conflict, no doubt he will propose it on some other occasion. The only proposal I gather he made was that there should be a different distribution of the powers, but that does not arise on this Clause.

That was my proposal. I did not realise that the right hon. and learned Gentleman was going to deal with it. I should be very grateful if, in order to elucidate this matter, he would answer two questions so that we might understand the relations between provincial and federal legislation. Would the provinces be able, without any repugnancy, to increase the grounds for divorce? Would they be able to make—

We can hardly go into those matters on this Clause. Possibly on the Schedule, but not here.

I am only trying to elucidate the meaning of repugnancy. I am not arguing as to the rights or wrongs of those subjects being in the Schedule. I want to know what is meant by repugnancy. Would it mean increasing the grounds for divorce? I will put that one question to my right hon. and learned Friend.

My hon. Friend is in this difficulty in this case: he either wants to alter, as he quite frankly says, what we have already decided in regard to the Division of the legislative fields, or he wants to raise questions which you, Sir Dennis, are not prepared to allow him to raise, as to the subjects which are included, and as to the effect of the inclusion of some particular topic in a particular list. You would not allow me—

Surely my hon. Friend is entitled to cite a subject like divorce and to invite the Attorney-General to deal with it in order to elucidate the point which he is making? It is very much easier to understand these things by the use of concrete examples.

When I stopped the hon. Member for Gorton (Mr. Bailey), he was proceeding to go through a list of many items in the Schedule. Obviously we must not do that; incidentally we should be occupied here all night on this Clause if we did that.

Cannot the Attorney-General answer with regard to that one example?

The hon. Member was prevented from putting the question which he desires should be considered. If my hon. Friend has a point which he wants to put about legislation on divorce, I will do my best to give him an answer at the moment, but I should have thought that it would be better that we should postpone these questions until we come to discuss the particular matters included in the federal list.

I do not want to trouble my right hon. and learned Friend—

I have already stated my reasons for objecting to what the hon. Gentleman said. If he merely proposes to give one case as an example on which he asks for an explanation of the meaning of repugnancy, I shall have no objection to his question being answered.

I am very much obliged to you, Sir Dennis. I am not arguing the merits of those subjects being in the Schedule, but I want to know what repugnancy means. Does it mean that, if you want to make a new ground for divorce or for bankruptcy, that would be repugnant if it did not contradict the State law? Does it mean that a provincial legislature may have power to make minor local adjustments or substantive legislation? I am applying this to the issue of what repugnancy is, and not to the advisability of these things being in the Schedule.

The ATTORNEY-GENRAL:

If I may take the question asked by my hon. Friend as to whether it would amount to repugnancy if a provincial legislature were to enact new grounds for divorce, I should say that it rather depends upon the nature of the legislation, and I should not like to say definitely. It might be that the ground was covered by existing federal legislation which left it open to the provincial legislature to add new grounds to divorce. I imagine that it would be repugnancy, and in such a ease the machinery provided by Subsection (2) would operate. The action of the Governor-General which is there contemplated would follow, and the question would be resolved in accordance with the provisions of the Clause which provides that, in a case where the matter has been reserved and His Majesty's consent given, the provincial law should prevail in the Province. Nevertheless the Federal Legislature may at any time pass further legislation in regard to the same matter.

It must not be supposed, as my hon. Friend rather suggested, that the difficulties which are always inherent in the Division of legislative powers in a federal system are now for the first time, this afternoon, at 10 minutes past six, coming under the notice of this Committee and of my hon. Friend. My hon. Friend made a most interesting set of observations upon these difficulties, but he has merely been saying one or two of the things which have been considered during the last four or five years by some of the very best minds in India and in this country.

But not in Parliament.

No, we have left some of the best minds in Parliament still to deal with them. They have been considering for years as to the best way in which Parliament can deal with the difficult questions that always arise when you have to consider the possible conflict between federal legislation and provincial legislation. The lists have been drawn up, as I think the Secretary of State said this afternoon, and are the result of most anxious consideration. There is no infallibility about the lists, but once they have been drawn up there still remains the task of providing for what is going to be done when there is some repugnancy or conflict between the legislation of the two bodies.

Until somebody suggests a better plan, the means which are proposed in Subsection (2), subject to the general principles stated in Sub-section (1) are the best. The underlying idea is, as I have said, that in matters in which uniformity is desirable there shall be a power to prevent the provincial legislature from legislating so as to produce that uniformity, bearing in mind that in such a country as India, and in any place where a federal constitution is devised, there may be local religious and racial questions which require local adjustment of a uniform law passed by the federal legislature. For circumstances of that kind this Clause seems suitable, and the observations of my hon. Friend have not thrown any doubt on the broad lines of the Clause.

6.13 p.m.

The Attorney-General has said that these matters have been considered for the last four or five years. We are under a great obligation to the gentlemen who have given their attention to them, and all that we ask is that Parliament should know the meaning of the results. My hon. Friend the Member for Gorton (Mr. Bailey) has spoken forcibly of the possible or probable difficulties that may arise under the legislative system which the Bill proposes to set up. If we visualise that system it seems very probable that grave difficulties will arise. There will be a central Federal Legislature and eleven provincial legislatures. Some of the provincial legislatures will have a Majority of one denomination, and some of another. I am not going to enlarge upon that, or I shall be out of order. I would only refer to what has already been said by the Secretary of State in this connection this afternoon, and that is, that separating the legislative subjects into provincial subjects and federal subjects, which are dealt with in this Clause, aroused a great deal of bitter feeling and so another list, the concurrent list, was instituted.

The Secretary of State said that upon an earlier Clause and in reference to an Amendment which was dealt with some time ago.

The observations of the Secretary of State seem to be relevant to our present discussion. The Attorney-General and my hon. Friend the Member for Gorton have been dealing with the question of repugnancy, which means, in other words, that if a measure passed by the federal legislature conflicts with a measure passed by the provincial legislature, the Federal Laws, or, under Sub-section (2), the laws passed by the provincial legislature, will prevail. If, however, a law passed by the Federal Legislature is repugnant to a provincial law, it may well be that the Opposition of the provincial legislature will be strong and bitter, and I would ask what is the machinery for enforcing the Federal law? It is difficult to know when to bring up these questions, but they are vital. Sometimes we find that we must raise them on the Schedule, and sometimes on a Clause.

This Clause, at any rate, is not the place for raising this question.

I would express the hope that later on, in dealing with this most important question of the possibility of conflict between the Federal Legislature and the provincial legislatures, it may be made quite clear to the Committee what the procedure is, and whether the machinery provided for carrying the law into effect will be effective.

6.17 p.m.

The extraordinary thing about the machinery provided by the Government in this Clause is that it appears to depend entirely on whether a subject has been reserved for the consideration of the Governor whether the provincial law or the Federal law will prevail. In other words, the Governor has the power of deciding in each particular case whether a provincial law shall prevail or whether the Federal law shall prevail, by the manner in which his assent is given. The Attorney-General assures us that this is the result of consideration by all the wisest men in the country for five years, but I am bound to say that I take the gravest exception to legislation being conducted in any such manner. We do not propose to divide against the Clause, but I think it is an extraordinary and complicated piece of machinery.

6.18 p.m.

May I invite my Noble Friend to suggest some alternative? The great feature of the Debate has been the extraordinary length of the speeches against the Clause, and their extraordinary poverty in suggestions. I invite my Noble Friend to state what would be the plan that he would have suggested if he had been one of the elements in the consideration of the matter.

I would remind my Noble Friend that you cannot make a silk purse out of a sow's ear, and that it is impossible to make this Bill workable.

6.19 p.m.

I should like to point out that in Sub-sections (1), (2) and (3) of the Clause the word used is either "repugnancy" or "repugnant," whereas in the proviso the word used is "inconsistent." I am wondering whether there is any real reason for using a different word in the proviso from the word used in the Sub-sections. It seems to me that that might cause some difficulty to the higher courts when they come to construe the word "repugnant." Why should not the same word have been used? If there is a difference in meaning, I should personally be glad to be told what the difference is.

6.20 p.m.

The Attorney General:

I will certainly look into that point. The word in the marginal note—which of course is not legislation—is "inconsistency," but the proviso uses these words: Bill or Amendment for making any provision inconsistent with any Provincial law, and I am not at all sure that that is not a proper provision in the proviso, although, when such a Bill was passed, the question would arise whether it was repugnant or not. I am obliged to my hon. Friend for calling attention to the point, and will certainly look into it and see whether the use of different words was intentional.

I should like to know whether I should be in order in moving an Amendment to abolish the Concurrent List altogether, and, when we come to the Schedule in which the three lists are contained, whether I should then he—

No doubt that would be a perfectly proper point for the hon. Gentleman to put when the time comes, but I do not think it arises on this Clause. I must wait until we get nearer to the point before I rule upon it.