The Case for Rejection (A Supplementary Note)

The Case for Rejection

(A SUPPLEMENTARY NOTE) ¹

(Member, Working Committee of the Congress)

Turn to Budgets for a moment. A most unusual and altogether novel procedure is introduced in the J. P. C. Report in relation to Budgets. The J. P. C. is not satisfied with the recommendation of the White Paper that the Federal Upper House should, at the instance of Government, be able to demand that any grant which has been reduced or rejected by the Lower House should be brought up before a Joint Session. ‘We think,’ says the J. P. C. Report, ‘that all demands should be considered first by the Lower House and subsequently by the Upper, and that the powers of each House in relation to any demand should be identical, any difference being resolved by a joint session to be held forthwith.’

Much the most astounding provision in the whole Report is contained in the Second Schedule, which enumerates the provisions of the Bill the amendment whereof is not to affect the validity of the Instrument of Accession of a State. Thus, any amendment relating to the following points will invalidate the Instrument of Accession, and this means that these powers which are really the reserved powers under the Act cannot be transferred even by Parliament without entitling a State to walk out of the Federation. Yet, the Bill speaks of the inability of the States–once they gain access to the Federation–to secede. Let us briefly review the provisions whose amendment is virtually interdicted, rather we extract nearly the whole Schedule for the interest it abounds in.

PART II, CHAPTER II

The exercise by the Governor-General, on behalf of His Majesty, of the executive authority of the Federation, and the definition of the functions of the Governor-General; the executive authority of the Federation; the functions of the council of ministers, and the choosing and summoning of ministers and their tenure of office; the functions of the Governor-General with respect to external affairs and defence; the special responsibilities of the Governor-General relating to the peace or tranquility of India or any part thereof, the financial stability and credit of the Federal Government, the rights of Indian States, and the discharge of his functions by or under the Act in his discretion or in the exercise of his individual judgment; the provisions relating to His Majesty’s Instrument of Instructions to the Governor-General; the superintendence of the Secretary of State; and the making of rules by the Governor-General for the transaction of, and the securing of transmission to him of information with respect to, the business of the Federal Government.

PART II, CHAPTER III

The number of the representatives of British India and of the Indian States in the Council of State and the Federal Assembly and the manner in which they are to be chosen; the disqualifications for membership of the Council of State and of the Federal Assembly in relation to the representatives of the State; the procedure for the introduction and passing of Bills; joint sittings of the two Chambers; the assent to Bills, or the withholding assent from Bills by the Governor-General; the reservation of Bills for the significance of His Majesty’s pleasure; the annual financial statement; the charging on the revenues of the Federation of the salaries, allowances and pensions payable to or in respect of the Judges of the Federal Court, of expenditure for the purpose of the discharge by the Governor-General of his functions with respect to external affairs, defence, and the administration of any territory in the direction and control of which he is required to act in his discretion, and of the sums payable to His Majesty in respect of the expenses incurred in discharging the functions of the Crown in its relations with Indian States; the procedure with respect to estimates and demands for grants; supplementary financial statements; the making of rules by the Governor-General for prohibiting the discussion or the asking of questions on any matter connected with any Indian State; the making of rules by the Governor-General as to the procedure with respect to joint sittings of, and communications between, the two Chambers.

PART II, CHAPTER IV

The power of the Governor-General to promulgate ordinances in his discretion or in the exercise of his individual judgment, or to enact Governor-General’s Acts.

PART III, CHAPTER II

The special responsibility of the Governor relating to the rights of Indian States and the superintendence of the Governor-General in relation thereto.

PART III, CHAPTER III

The making of rules by the Governor for prohibiting the discussion of, or the asking of, questions on any matter connected with any Indian State.

PART V, CHAPTER I

The power of the Federal Legislature to make laws extending to a State or the subjects thereof, the power of the Governor-General to empower either the Federal Legislature or Provincial Legislature to enact a law with respect to any matter not enumerated in any of the Lists in the Seventh Schedule to this Act; the provisions of the chapter relating to inconsistency between a Federal law and a State law.

PART V, CHAPTER II

The previous sanction of the Governor-General to the introduction or moving of any Bill or amendment affecting matters reserved to the discretion of the Governor-General in relation to defence or external affairs; the power of Parliament to legislate for British India or any part thereof, or the restrictions on the power of the Federal Legislature and of Provincial Legislatures to make laws on certain matters.

PART VI

In so far as the provisions of that Part relate to Indian States.

PART VII, CHAPTER I

In So far as it relates to Burma.

PART VII, CHAPTER II

Loans and guarantees to Federal States.

PART VIII

The constitution and functions of the Federal Railway Authority; the conduct of business between the Authority and the Federal Government; and the determination of questions arising between the Authority and the Ruler of a Federated State.

PART IX, CHAPTER I

In so far as it relates to appeals to the Federal Court from High Courts in British India; the power of the Governor-General to refer questions of law to the Federal Court; the power of the Federal Legislature to confer further powers upon the Federal Court for the purpose of enabling it more effectively to exercise the powers conferred upon it by this Act.

PART XII

Resolutions of the Federal Legislature or any Provincial Legislature recommending amendments of this Act or Orders in Council made thereunder.

FOURTH SCHEDULE

The oath of affirmation to be taken or made by the Ruler or subject of an Indian State.

SEVENTH SCHEDULE

Any entry in the Legislative Lists which has not been accepted by the State as a Federal subject.

The addition, of Schedule 2 to the Bill virtually brings about this condition of things:

1. A State has to make a declaration that it is willing to abide by this Act.

2. This, when accepted by the King, forms the foundation of the Federation.

3. The Act so formulated has two sets of sections, (a) some enumerated as Chapters in Sec. 2, (b) those ‘saved ‘.

Virtually these are (a) Structural, and (b) Functional.

4. No amendment relating to matters enumerated (not saved, i.e., matters structural) shall affect the validity of the Declaration.

5. But in any case such an amendment is not binding on or does not extend to any Federated State-unless the Prince individually concurs in it. The implications of such an arrangement are with regard to matters ‘saved’ in Schedule 2. (i.e., functional matters), that any amendment of the Act in respect of ‘saved’ matters affects the validity of the declarations of the Federating States, and thus produces one of two results. Either the Federation is dissolved, or amendments are made impossible at the inception or in the implementing. In effect then, while structural amendments are capable of being passed with the consent of the Federating State and in any case in respect of British India, i.e., while structural amendments are capable of being made to apply to British India and such of the States as consent to them, functional amendments destroy the Federation itself or destroy themselves.

EXAMPLES

Structural.–Appointment of the Commander-in-Chief, Financial adviser, Advocate-General.

Composition of Legislatures in respect of British India Provincial Governments.

Functional.–Reserved Powers. Railway Board. Functions of the Reserve Bank Services.

Realty the object is to prevent the change of the Act in response to further agitation or by, say, a Labour Government, and to use the States in the Federation as an additional and effectual bar to further progress.

We now understand why the decennial statutory enquiry of the Montford scheme is abandoned, for this Act will be not for a decade, nor for a generation, but for eternity.

1 The main article was published in Triveni for Nov.-Dec. 1934.