भारत सरकार. प्रकरण 2 — प्रांतिक सरकार आणि राजसत्ता (क्राउन)

CHAPTER 2 PROVINCIAL GOVERNMENT IN RELATION TO THE CROWN

115. For the purpose of securing Provincial autonomy it is not sufficient merely to lay down proper relations between the Provincial Government and the Central Government. It is also necessary to define the status of the Provincial Government. This is of practical importance principally in respect to their external relations. That the Provinces cannot have any international status goes without saying. But the question of their relationship with the Home Government stands on a different footing and cannot be easily disposed of. It is clear that whatever the nature of the relationship between the Provincial and Home Government it must be in keeping with the constitutional law of the country. The degree of independent political existence of a Province must determine the angle from which the problem is to be looked at. Are the Provinces to be treated so very devoid of independent political existence that they are to be treated as mere internal divisions comparable with the areas of local Government, unknown and unrecognised beyond India itself ? If so, that Imperial Government would know but one Indian authority, the Central Government, and would in all matters affecting India address itself to that Government and receive communications from or through it alone. On the other hand, have the Provincial Governments an independent political existence in the eye of the law ? If they can be said to have it, then the Imperial Government must recognise them and must in all provincial matters address them and must receive communication from them. Of these two possible bases of relationship there is no doubt that the latter is the more proper one. An independent political existence for the Provinces is now an accomplished fact. They have a sphere of activity in which they have an authority of their own. The whole scheme of reforms is opposed to the subordination of the Provincial Governments to the Central. The chief executive of the Province is not a nominee of the head of the Central Government. He is the representative of the Crown in the Province and not of the Governor-General. The constitution is a pluralistic constitution and there is nothing to suggest the view that while within India the constitution is to be treated as plural, conferring distinct powers on each, it is to be treated by the Imperial Government as a unitary constitution with a single responsible Government.

116. What are the matters in which the right of Provincial Governments to deal directly with the Home Government can be recognised ? Following the role prevalent in the case of the Australian Commonwealth that in matters in which the Crown is concerned solely in its capacity as part of the constitution of a Government, communications proceed directly between the State Governor and the Colonial Office without the intervention of the Governor-General, it must be claimed on behalf of the Provincial Governments that they shall have the right to deal with the Home Government directly without the intervention of the Central Government. The matters in which it must have such a right must include the reservation, the allowance and disallowance of provincial legislation, the appointment and removal of Provincial Governors and their instructions, the amendment of provincial constitutions and other matters which exclusively belong to the Provincial Governments. What about matters which do not exclusively belong to either Government ? I suggest that in cases in which the Central Government has paramount power of legislation, the Central Government is the sole representative of India. But as to matters within concurrent jurisdiction of the Central and Provincial Government, the Provincial Government must have a right to direct representation.

117. To make the political existence of the Provinces as an entity independent of the Government of India a reality, the representation of the Crown in the Provincial Executive and the Provincial Legislature should be made more manifest than it is at present Under the existing law the Secretary of State has placed the Crown quite in the background and has in fact usurped its place. The office of the Secretary of State for India is analogous to the office of the Secretary of State for Colonies. But the two play quite different roles. The Secretary of State for Colonies occupies no place in the constitutional law of the Dominions. The constitutional laws of all the Dominions are emphatic in their declaration that their Executive and Legislative Government is vested in the Crown. Section 2 of the Government of India Act gives a definite legal status to the Secretary of State. So prominent is the position given to the Secretary of State that he has altogether eclipsed the Crown. Indeed, except for a passing reference in Section 1 there is no mention of the Crown anywhere in the Government of India Act. The reasons for this are no doubt historical and go back to the passing of the Regulation Act of 1773 when the East India Company disputed the right of the Crown to the possessions it had acquired in the East. Whatever be the historical differences the fact remains that the Dominion laws do not recognise the Secretary of State while the Indian law does. The result is that the Secretary of State for Colonies does not govern the Dominions. His duty is to advise the Crown to allow or disallow particular acts of the Dominion Governments. The Secretary of State on the other hand is not merely the adviser of the Crown. By Section 2 of the Government of India Act he has been given the fullest powers of government.

118. The provisions contained in Section 2 cannot be justified under any circumstance. They are derogatory to the position of the Crown and are a perversion of the true position of a Secretary of State. They gave a false picture of the position of the Provincial Governments. Whatever might have been the justification of the provisions in Section 2 before 1919 the changes introduced in that year have removed it altogether. The powers of government having been transferred to the people it is no longer possible to retain those powers in the hands of the Secretary of State. To do so would be to introduce a system of double government fraught with the possibilities of serious conflict. I therefore recommend that section ( 2) of the Government of India Act should be deleted and two new sections of the following tenor should be added :— (1) The Legislative power of the Province shall be vested in a Provincial Parliament which will consist of the King and a Council of the King and a Council of Representatives and which is hereinafter called “The Provincial Legislature”.

(2) The Executive power of the Province is vested in the King and is exercisable by the Governor as the King’s representative and extends to the execution and maintenance of the constitution and of the laws of the Province.

Sections of similar import regarding the position of the Crown in the Government of India should be added to Act of 1919. Such a change will not only help to place the Crown and the Secretary of State in their true position, but they will also help to bring the constitutional law of India in line with the constitutional law of the Dominions.