Great Britain and India
The purpose of this page is to ventilate that moderate Indian opinion which, recognizing all the difficulties, yet believes in the continued association of Great Britain and India within the loose framework of the British Commonwealth of Nations.
Supreme Court for India
WHATEVER the differences between the federal Constitutions of America, Canada, Africa and Australia, there is one feature which is shared by them all, namely, the recognition of the necessity of having a Judicial body, a Supreme Court, as an interpreter and safeguard of the Constitution. The federal system is a combination of States desirous of union as against unity, and, in view of the fact that it is based on the distribution of powers between the federal and local governments, and has invariably a written Constitution, it can be maintained only if an independent body is set up to decide as to whether or not a given Act of the central or local legislature is consistent with the Constitution. The establish- ment of a federal Constitution in India prima fade implies the setting up of a federal Supreme Court. Only then can the participants be assured of their rights and reminded of their obligations.
But such a Court need not be an exact copy of the Dominion Supreme Courts in extent of jurisdiction. Dominion Supreme Courts decide the validity of federal and local legislation ; an Indian Supreme Court need not deal with provincial legislation at all. At present all questions relating to the validity of legisla- tion, provincial and central alike, are left to the Governor-General who, by withholding his power of " assent," can easily cure defects, thus dispensing with the necessity of inviting the decision of a court of law. In fact, as the Statutory Commis- sion points out in its Report, it is " an ingenious method of securing in practice a distribution of topics between the central legislature and provincial legislature while avoiding the danger of technical objections being raised and litigation promoted on the plea that the wrong legislature has passed the Act and that therefore it is a nullity." Startling as the innovation is it might yield good results if it is further tested and improved.
An Indian Supreme Court should deal primarily with the respective rights and obligations of the States and the Indian Government. Unlike the Provinces which have no traditions of State rights, the Indian States, subject to the interference of the Governor-General in cases of misrule, non-compliance with treaty obligations, and the like, are independent in their internal administration and jealous of their treaty rights. They are not affected by the legislation of the central legisla- ture ; nor are their laws dependent for validity on the assent of the Governor-General. Under the existing system it is the Governor-General who decides whether or not a State has passed beyond the limits imposed upon it by the Paramount l'ower. He is both the defendant and the Judge ; he decides in his own case. His verdict, coming as it does from the head of the Indian Government, must of necessity be based on the considerations that affect his policy and his government rather than on the justice of the ease. Equipped as he is with expert legal advice his judgment can seldom be im- partial. The question of tariff duties is in point. Although the States are supposed to have complete control over their revenues yet their tariff policy is determined not by them- selves but by the Indian Government, and this in spite of the fact that the relations between the two are based on treaties, sanads and other documents in which the power of the Governor-General to levy indirect taxes on the States hardly finds reference. It is quite possible that such difficulties may arise in future, and equally probable that if they do they will receive the usual treatment at the hands of the Indian Government.
A Supreme Court will sweep away all partialities and defects. It will keep the Indian Government and the States within their respective spheres, and its decisions being that of un indepoilent judicial body will be more acceptable to the I'rinces than the decisions of the Governor-General. There is, however, one great difficUlty in the way of such a consumma- tion. The number of prospective litigants is likely to be unusually large. There are 562 States, some of them as large us a British province, and the smallest hardly covering more than a few acres. If all the States are equally given the right
to approach the Court the task of the Tribunal will be inflated beyond description. Petty disputes of petty chiefs will only add to its work and expense.
Some sort of measure will have to be laid down according to which a State may or may not have the right of appeal to the Court. Such a measure may profitably be found in the classi- fication of States made by the Butler Committee or in the present constitution of the Chamber of Princes. Out of the total number of 562 States 108 are directly represented in the said Chamber, 127 represented by twelve members of their order elected by themselves, and the remaining 827 are not represented at all. As the States are arranged in order of importance the two last mentioned seem to be the least in- fluential—in fact they are ruled by chiefs, jagirdars and estate holders—and therefore should have the least justifica- tion for resorting to the Court. Not inadvisedly does the Report of the Statutory Commission recommend the buying out of these estates, wherever possible, and curtailment of their jurisdictional [rights. The best solution seems to be to leave them to the discretionary power of the Governor- General as at present. The States that really matter are those directly represented in the Chamber. Owing to their vast area and population, their vast organization of State services and developing industries, they have, comparatively speaking, a larger stake in the country, and so need an inde- pendent judicial body to pronounce judgment upon any action of the Indian Government that seems to trench upon their rights. Constituting an integral part of India and enjoying internal independence they cannot be compelled or ignored.
Not less important is the manner of appiintment of Judges whose number should not be more than nine nor fewer than five. It is conceivable that the personal qualities of the Judges appointed by the Indian Court may fail to win the confidence of the States. In the interests of common cause and harmon- ious relation it is desirable that the rulers should play some part in their appointment. Half the number should be chosen out of the names of Judges or lawyers of all-India fame submitted to the Indian Government by the Chamber of Princes (one of the selected ones if possible should be a State Judge), the other half with the Chief Justice being appointed by the Indian Government. They should be well paid and hold office for life, subject to removal by the Executive on addresses from the Legislative Assembly and the Chamber of Princes or, if the latter is abolished, the Upper House containing a substantial representation of the States. The chief advantage of such an appointment will lie in the con- fidence with which the decisions of the Court will be received by the disputants. The presence of a State Judge will place at the service of the Court an intimate knowledge of State as opposed to Indian point of view. The permanency of tenure will add to the integrity and stability of the Bench and will make it independent of executive control in the fulfilment of its duties. Above all, such a Court would be in a far better position to give acceptable interpretations in the light of what is expedient for the country as a whole than either the Indian Government or any body solely appointed by it.
The States, as the Report puts it, cannot chalk out their destiny independently of British India ; the two must stand or fall together. Every means that helps to bind them together should therefore receive the closest consideration. The federal system of government will make them pursue their common destiny ; the Supreme tdurt will save them from colliding with one another.
BRIJ LAL SHARMA.
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