16A. Evidence Taken Before The Joint Committee PART I

Sir Patrick James Fagan, K.C.I.E., C.S.L, F.R.A.S., Mr. E. B. Loveluck, Mr. Wilfred Harold Shoobert, Mr. Eustace Arthur Cecil King, Mr. Henry Robert Harrop, Mr. Frederick Wynne Robertson, Sir Evana Cottan, Mr. Harold Lancelot Newman and Mr. Sale, on behalf of European Government Servants, Indian Police Association and Civil Engineers* Association.

^[f1]382. Dr. B. R. Ambedkar: You stated a little while ago that there is a great deal of hostility shown to the Indian Public Service by the Indian Press and by the politicians in India ?

Sir P. J. Fagan: Yes.

383. Dr. B. R. Ambedkar: I would like to read to you a small extract from the Minute written by Sir Reginald Craddock, which is appended to the Lee Commission Report, on page 132, paragraph 10, a few lines from the bottom. This is the paragraph to which I want to draw your attention : " Several of those who have given evidence before us believe that the hostility from time to time shown by the new legislatures is entirely occasioned by the fact that the members of the All-India Services are imposed on them from outside, and that fresh recruitment for those Services will indefinitely prolong these vested interests; but that, once control passes from the Secretary of State to the Government of India or to the Local Government in the transferred field as the case may be, all bias and animus will disappear." I want to know whether you agree with that statement ?

Sir P. J. Fagan : No ; I do not think we have sufficient grounds for agreeing with that statement. Of course, if it should turn out so, it would be good, but I am afraid the Associations have not sufficient grounds for agreeing with the statement that there would be a sudden change of attitude.

384. Dr. B. R. Ambedkar: Do not you think the very fact that you want to remain outside the control of the Indian Legislature, and the new Government will itself be provocative enough to arouse public opinion against you ?

Mr. W. H. Shoobert: Sir, we do not want to remain outside the control. We only want our existing accruing rights, our pensions and our family pensions secured. We do not wish to be outside the control in the very least

385. Dr. B. R. Ambedkar: Supposing, for instance, all the rights that may be agreed upon in this Conference as being legitimate rights of the Indian Civil Servants were guaranteed to you by Indian Legislatures by Acts passed by the Local and Central Legislatures. Would that give you sufficient protection ?

Sir P. J. Fagan: We are afraid of the financial situation.

386. Dr. B. R. Ambedkar: That is another matter : whether the Indian Legislature will be able to find the moneys on account of your services and other matters is another matter?

Sir P. J. Fagan: Quite.

387. Dr. B. R. Ambedkar : But with regard to your conditions of service, what I want to press is, suppose they were regulated by the Acts of Indian Legislatures (by rules made by the Secretary of State in Council). Do you think that would give you adequate protection or not ?

Sir P. J. Fagan: No.

Mr. W. H. Shoobert: Such Acts could be repealed by future extremist Governments.

388. Dr. B. R. Ambedkar: Supposing some provision were made for that, that there would be no sudden repeal of an Act ?

Sir P. J. Fagan: I think I may say that the Associations would certainly not regard that as sufficient protection.

389. Dr. B. R. Ambedkar: I want to make this point which you have made so much of, that there is so much hostility against you in India both on the part of the Press and the politician. Is not it the fact that you are asking for safeguards the result of which is to keep you entirely out of the purview of legitimate public opinion expressed in the Press as well as in the Legislature ?

Sir P. J. Fagan: No, I do not think it keeps us outside the purview. I should say certainly not. I certainly do not think that it would keep them out of the purview of healthy public opinion.

390. Dr. B. R. Ambedkar: I want to put this question to you again : Do not you think that if you were under the control of laws made by the Indian Legislature with the consent of the Indian Ministers you would get far better protection from the Indian Ministers themselves when you are attacked in the Press or by the public than you are likely to get if you remain outside ?

Sir P. J. Fagan : No ; I do not think the Associations would take that view.

391. Dr. B. R. Ambedkar: You just now read some extracts from the Simon Commission Report in support of the statement you made just now. Is it not a fact that Sir John Simon was driven almost against his will to recommend the transfer of law and order simply because he came to the conclusion that to keep that as a reserved subject would expose the services operating in that Department to extreme criticism ?

Sir P. J. Fagan: That is again, I think, a subject that we would rather avoid. It is a very debatable subject and I believe there are very diverse opinions on the subject. I am not responsible for what Sir John Simon may have thought.

Dr. B. R. Ambedkar: Do you agree that that was the reason for its prevailing with the Simon Commission Report?

Sir Austen Chamberlain: The witness has already asked to be excused from answering that question.

Dr. B. R. Ambedkar: I do not wish to press it if he does not wish to answer.

Sir Austen Chamberlain: Surely it is not a proper question to press the representatives of the Civil Service on. who come to speak to their own special position and claims, and not to take part in a discussion about general reform in India.

Dr. B. R. Ambedkar: The reason Sir John Simon cites for the transfer of law and order was that reserving that Department outside the control of the Legislature and the Minister would expose the Department to far greater criticism from the Press and the public.

Viscount Burnham: As a member of the Statutory Commission, what Dr. Ambedkar has said is a most misleading account.

Dr. B. R. Ambedkar: Possibly I may have misread it.

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Mr. Sacbchidananda Sinha, Barrister-at-Law, M.I.C.

^[f2] 1985. Dr. B. R. Ambedkar: I want to ask you, first of all, a question about the special powers of the Governor, especially his power to take action in order to prevent a menace to peace and tranquillity. I want to draw your attention, if I may, to the position as it exists today with regard to the administration of the transferred subjects. Have you got the Government of India Act before you ?

Mr. Sachchidananda Sinha: Yes.

1986. Dr. B. R. Ambedkar: Will you just refer to Section 52 of the Government of India Act?

Mr. Sachchidananda Sinha: Yes.

1987. Dr. B. R. Ambedkar: I do not want to take you to Section 45 of the Government of India Act which provides for the classification of subjects transferred and reserved ; that we know. I am dealing only with the question of control. If you take Section 52, sub-section (1) says: "The Governor of a Governor's Province may, by notification, appoint Ministers, not being members of his Executive Council ", and so on ?

Mr. Sachchidananda Sinha: Yes.

1988. Dr. B. R. Ambedkar: Then we come to sub-section (3)—this is what it says: " In relation to transferred subjects, the Governor shall be guided by the advice of his Ministers, unless he sees sufficient cause to dissent from their opinion, in which case he may require action to be taken other-wise than in accordance with that advice " ?

Mr. Sachchidananda Sinha: Yes.

1989. Dr. B. R. Ambedkar: What I call your attention to is that this section does not say that wherever the Governor thinks there is a menace to peace and tranquillity, he shall overrule his Ministers ?

Mr. Sachchidananda Sinha: No.

1990. Dr. B. R. Ambedkar: Specific provision is not made in this section as it is now made in the White Paper ?

Mr. Sachchidananda Sinha: No, that is so.

1991. Dr. B. R. Ambedkar :. If you refer to the Instrument of Instructions, which is issued to the Governor, in which he is told in what cases he should not Act upon the advice of the Ministers ?

Mr. Sachchidananda Sinha: I have not got a copy here.

1992. Dr. B. R. Ambedkar : You will find it in that book at page 269 ?

Mr. Sachchidananda Sinha: Yes, I have it.

1993. Dr. B. R. Ambedkar: On page 270, clause VI of the Instrument of Instructions says : "In considering a Minister's advice and deciding whether or not there is sufficient cause in any case to dissent from his opinion, you shall have due regard to his relations with the Legislative Council and to the wishes of the people of the Presidency as expressed by their representatives therein." In other words, the Governor, under the present circumstances, can over-rule the Minister and not accept his advice in the matter of transferred Departments, only if he came to the conclusion that the Minister had not the support of the Legislature or of the constituencies ?

Mr. Sachchidananda Sinha: That is so, I suppose.

1994. Dr. B. R. Ambedkar : What I want to say is this, if I may, for the sake of clarity: Under the existing system of administering transferred Departments, the Governor has not got his special veto which is now given under clause (a) of the powers given to the Governor, namely, to maintain peace and tranquillity ?

Mr. Sachchidananda Sinha: That is so.

1995. Dr. B. R. Ambedkar: Today, having regard to the fact that the Department of Law and Order is a reserved subject, he, of course, can take any action that he likes within the scope of that Department ?

Mr. Sachchidananda Sinha: Yes.

1996. Dr. B. R. Ambedkar: But he cannot come to the Minister and say: " I will not accept your advice, although you are dealing with a transferred Department, because the action that you propose to take will be a menace to peace and tranquillity " ?

Mr. Sachchidananda Sinha: No.

1997. Dr. B. R. Ambedkar: So, consequently, this is a retrograde provision ?

Mr. Sachchidananda Sinha: Undoubtedly.

1998. Dr. B. R. Ambedkar: Today the Minister can take any action he likes in his Department. Under the new scheme of the White Paper (assuming the White Paper goes through) every Department would be a transferred Department. The veto of the Governor arising out of his special power to maintain peace and tranquillity instead of being confined to one particular Department of Law and Order will spread itself over to every Department ?

Mr. Sachchidananda Sinha: Yes.

1999. Dr. B. R. Ambedkar: It would be, to that extent, a diminution of responsibility in every Department, although every Department would be a transferred Department ?

Mr. Sachchidananda Sinha: That is so.

Dr. B. R. Ambedkar: Now let me come to the question of the Services. You will see the Appendix 7 which enumerates them—

Viscount Burnham: On a point of order, my Lord Chairman, we have had this explanation of what are the present powers of the Governors of Provinces, but we are not told where it is laid down.

Dr. B. R. Ambedkar: I drew attention to Section 52(7) of the Government of India Act.

Viscount Burnham: On whose authority is this explanation given ?

Dr. B. R. Ambedkar: I do not know.

Viscount Burnham: Who authorises the explanation which you have given ?

2000. Dr. B. R. Ambedkar: That is my own interpretation of the Act and the Witness agrees with it. I refer to Section 52, and the Instrument of Instructions, which is part of the Act. Now coming to the question of the Services, Appendix 7, you will see there in that Appendix—1 do not want to refer specifically to each point, that provision is made that the Secretary of State in Council shall retain all powers regarding classification and the regulation of the conditions of service ?

Mr. Sachchidananda Sinha: Yes.

2001. Dr. B. R. Ambedkar: May I refer you now to Section 96B, sub-section (2)? This is how it reads : "The Secretary of State in Council may make rules for regulating the classification of the Civil Services in India, the methods of their recruitment, their conditions of service, pay and allowances and discipline and conduct." And further "such rules may, to such extent and in respect of such matters as may be prescribed, delegate the power of making rules to the Governor-General in Council or to local Governments, or authorise the Indian Legislature or local Legislatures to make laws regulating the Public Services."

Mr. Sachchidananda Sinha: Yes.

2002. Dr. B. R. Ambedkar: So, under the Government of India Act as enacted, the intention was to transfer this power of making rules with regard to the emoluments and the conditions of service, to the Governor-General or to the Indian Legislatures ?

Mr. Sachchidananda Sinha: Or the Local Governments.

2003. Dr. B. R. Ambedkar: And the intention was that the conditions of service should be such as to be assimilated to the new system of government that was to be introduced in India ?

Mr. Sachchidananda Sinha: That seems to be the implication.

2004. Dr. B. R. Ambedkar: If, for instance, these provisions as they are laid down in Appendix 7 were enacted, the whole tendency which emanated from the Government of India Act of developing control over the Indian authorities would be arrested ?

Mr. Sachchidananda Sinha: That is why I say in my Memorandum that the proposals relating to the Public Services do not give satisfaction to India.

2005. Dr. B. R. Ambedkar : It is quite necessary, and it is in fact provided in the Government of India Act itself, that these powers are being exercised by the Secretary of State in Council, and may be delegated, under proper conditions, to the Indian Legislature ?

Mr. Sachchidananda Sinha: Yes.

2006. Dr. B. R. Ambedkar : If the White Paper proposals were enacted, this process of devolution would be arrested ?

Mr. Sachchidananda Sinha: Clearly.

2007. Dr. B. R. Ambedkar: Take, again, certain specific items in the Services' rights. Take, for instance, 14 on page 121, "Personal concurrence of the Governor, formal censure," and soon; 15: "Personal concurrence of the Governor with regard to posting; 16 : Right of complaint to the Governor against any order of an official superior," and so on. Now these rights, as conditions of service, are really not final; they are in their evolutionary stage. These were enacted because nobody was certain how the Minister would react ?

Mr. Sachchidananda Sinha: What is your question. Dr. Ambedkar ?

2008. Dr. B. R. Ambedkar : My question is this : Some of these Service conditions which are laid down, and to which I have drawn your attention, were enacted as an experimental thing in order to find out what exactly would be the ultimate result of the experiment between a popular Minister and the Civil Service?

Mr. Sachchidananda Sinha : Yes.

2009. Dr. B. R. Ambedkar: They were not intended to be final ?

Mr. Sachchidananda Sinha: No, I suppose not.

2010. Dr. B. R. Ambedkar : And if they were enacted as they are, I again say that the process of assimilating the conditions of the Civil Service to the responsible system of Government would be arrested ?

Mr. Sachchidananda Sinha: Yes.

2011. Dr. B. R. Ambedkar: I just want to ask you one question about this Central responsibility. You said in reply to a question by Sir Henry Gidney, that you were very keen on a date being fixed for the inauguration of the Federation ? Mr. Sachchidananda Sinha: Yes.

2012. Dr. B. R. Ambedkar: On the other hand, as you are aware, it is urged that it is impossible to fix any specific date, because there are so many elements of uncertainty, namely, that the Princes may not come in, within the time prescribed, and you know also that in order to avoid that there are certain transitory provisions enacted in the White Paper. Now what I want to suggest is this, because I am anxious to get your opinion upon this point: Suppose the Federation were started immediately with a nominated bloc in the Central Legislature, partly of officials and partly of non-officials, pending the admission or the entry of the requisite number of Princes, so that the Federation may not keep on hanging until the requisite number of Princes come, would you have objection to that sort of system ?

Mr. Sachchidananda Sinha: I can express no opinion offhand. but the matter may be considered and examined. It is worth examining.

2013. Dr. B. R. Ambedkar: I want to get this point clear. I suppose you do not agree with the position that Federation of British India with the Indian Princes is a condition precedent to responsibility at the Centre ?

Mr. Sachchidananda Sinha: I do not desire to express any opinion, because I understand the proposals outlined in the White Paper were agreed to at the Round Table Conference.

2014. Dr. B. R. Ambedkar: What I am putting is this : Speaking apart from the White Paper, you do not say, or you do not agree, that British India can have Central responsibility only on one condition, that there shall be Federation ?

Mr. Sachchidananda Sinha: No, not apart from the White Paper.

Mr. Butler: Before we proceed further, my Lord Chairman, may I say that we cannot accept the interpretations given in these questions and answers of the present Government of India Act, in particular the limitations which have been assumed under the Instructions of the present Government, Clause VI and Section 52 of the present Government of India Act?

(3)

Mir Maqbool Mahmood, Dr. P. K. Sen, Mr. K. M. Panikkar and Mr. B. Kak, on behalf of Chamber of Princes

^[f3]3000. Dr. B. R. Ambedkar : Arising out of these questions, I want to put the thing as I see it. You know in the White Paper there is one condition laid down for the inauguration of the Federation : that is the joining of a certain number of Indian States. Then for the transfer of finance an important condition is laid down, and that is the introduction of the Bank. What I want to ask you is this : Would the Princes be prepared to join the Federation if finance was not a transferred subject ?

Mir Maqbool Mahmood : I have no definite instructions on that question, but I do not think that, considering the trend of their discussions, they would be prepared to.

3001. Dr. B. R. Ambedkar: They would not be prepared to join the Federation if finance was not a transferred subject ?

Mir Maqbool Mahmood: I do not think so.

3002. Dr. B. R. Ambedkar: Coming to other matters, in the course of the evidence that you gave last time, Mir Maqbool, you stated that in case all the Princes did not join the Federation at once you would like to have a system introduced whereby those Princes who would join the Federation should be allowed to have the benefit vicariously of the votes of those who did not Join. I have put it correctly ?

Mir Maqbool Mahmood: That represents only one aspect of the position.

3003. Dr. B. R. Ambedkar: That is the position you take?

Mir Maqbool Mahmood: That is half the truth, not the full truth. We contemplate two aspects of the position.

3004. Dr. B. R. Ambedkar : I know your Confederation ?

Mir Maqbool Mahmood: Not that: One is, that States which are entering will do so on the assumption that the States' position in the Federation would be 40 per cent. in the Upper House and one-third in the Lower House; that is with regard to the States which entered, individually ; the other is in regard to those States which are outside, that they are also affected by the decisions of Federation. Those are the two aspects, and I understood your question referred to the second.

3005. Dr. B. R. Ambedkar : I just want you to concentrate your attention, if you please, on this point : I thought I understood from you, last time, that you wanted to lay down as one of the conditions, that if all the States did not enter the Federation at once in the beginning, and that if only some entered and other kept out, you would like a system of weightage, so to say, in which those Princes who entered the Federation would claim, or cast votes vicariously, those which were the share of those which did not enter. That is the position ?

Mir Maqbool Mahmood : Yes.

3006. Dr. B. R. Ambedkar :Now what I want to ask you with regard to that, is this : What would be the position of those States which would not enter the Federation at the start, but whose votes were used by those who did enter vis-a-vis the Federation, with respect to taxation and with respect to Federal Legislation ? Would Federal Legislation be operative in those States which did not enter, but whose votes were used ?

Mir Maqbool Mahmood: It would, substantially, be the same as it is now.

3007. Dr. B. R. Ambedkar: No; my point is this : Would the Federal law be operative in those States which did not enter the Federation, but whose voting strength was used by States which did enter the Federation ?

Mir Maqbool Mahmood: In certain matters of taxation, it would apply in spite of it. In other matters it would apply by negotiation.

3008. Dr. B. R. Ambedkar: Would they be regarded as member States of the Federation ?

Mir Maqbool Mahmood: No.

3009. Dr. B. R. Ambedkar: They would not be ?

Mir Maqbool Mahmood: No.

3010. Dr. B. R. Ambedkar: And yet their votes would be used ?

Mir Maqbool Mahmood : Yes. In the same way as under Article 147 of the Canadian Constitution, Nova Scotia and New Brunswick exercised the votes of Edward Island in the Senate that the latter formed the Federation.

3011. Dr. B. R. Ambedkar: Now I want to ask some questions about nationality. I do not know which of you gentlemen would address yourself to that matter. I think it is common ground that the subjects of the Indian States are aliens, so far as British India is legally concerned ?

Mr. K. M. Panikhar : They are British protected people, but, in law, they are aliens.

3012. Sir Hari Singh Gour : They are not British subjects ?

Mir Maqbool Mahmood: They are not British subjects.

3013. Dr. B. R. Ambedkar: They come within what is known as the Foreigners' Act in British India ?

Mir Maqbool Mahmood: I do not think so.

3014. Dr. B. R. Ambedkar: You can take it from me, that they do. Anyhow, it is common ground, that they are not British subjects, and you do not propose, I suppose, to regularise the position which would be most compatible and consistent with All-India Federation, to have one common Indian nationality ?

Mir Maqbool Mahmood: That is not contemplated.

3015. Dr. B. R. Ambedkar : So I take it that the result of this will be that if the situation which obtains now continues, aliens (I mean subjects of the Indian States) would be entitled to the franchise, would be entitled to stand as members of the Federal and the Provincial Legislatures, and would be entitled to hold office of trust under the Crown, without being subjects of the Crown ?

Mir Maqbool Mahmood: That is possible, even now.

3016. Dr. B. R. Ambedkar : I know it is possible.

Mir Maqbool Mahmood: It has happened, even now.

3017. Dr. B. R. Ambedkar: But what I want to ask is this : Do you not regard that as an anomalous thing ?

Mir Maqbool Mahmood: We do not think so.

3018. Dr. B. R. Ambedkar: Can you cite to me any Constitution in which an alien is entitled to the franchise, is entitled to stand as a member of the Legislature, and is further entitled to hold office of trust ?

Mir Maqbool Mahmood: Even here our distinguished Delegate, Sir P. Pattani, was a member of the Executive Council.

3019. Dr. B. R. Ambedkar : I know that, but what I am trying to impress upon you is that that is an anomalous thing, something which is not found in any other Federation ?

Mir Maqbool Mahmood: I cannot cite an instance at the moment.

3020. Dr. B. R. Ambedkar : You think it is a very wide system in which a subject of an Indian State may hold an office of trust under the Crown, and yet may be subject to what is known as the Foreigners' Act ?

Mir Maqbool Mahmood: So long as he takes the Oath of Allegiance to the Constitution.

3021. Dr. B. R. Ambedkar: Do you think that would take him out of the purview of the Foreigners' Act ?

Mir Maqbool Mahmood: If it is necessary for you to reconsider that Act, you might do so.

3022. Dr. B. R. Ambedkar: That is the point I am putting. Would it, therefore, not be desirable to have a common Indian nationality ?

Mir Maqbool Mahmood: I am afraid we have not considered the legal implications of this position.

3023. Mr. Jayakar: Has this question of a common nationality been considered by the Princes at all ?

Mir Maqbool Mahmood: Yes.

3024. Dr. B. R. Ambedkar : And they do not approve of it ?

Dr. P. K. Sen: The Princes have not denied the allegiance of their subjects to the British Crown, subject to their allegiance to the Rulers of the States themselves. That is, a supplementary allegiance has always been considered in that sense, and therefore they have always been allowed, in Provinces of India the same privileges as British Indians.

3025. Dr. B. R. Ambedkar: I am talking about the legal position as it would be ?

Mir Maqbool Mahmood: I do not think, if I may say so with respect, that analogy would help us very much in a case of this kind, because the position as regards the States in India and their relationship with the Crown is undoubtedly unique, and you cannot, therefore, draw much help by analogies of that description ; but as a matter of fact, the question of nationality is pre-eminently im