*LORD STANLEY OF ALDERLEY
asked Her Majesty's Government if they would appoint a Mussulman and a Hindu lawyer to act as assessors in Indian cases before the Judicial Committee of the Privy Council, and if they would confer knighthood on the High Court Judges on their appointment, as was the practice with Judges of the Supreme Court of Calcutta? He said that when he brought before the House last year the complaints of both Hindus and Mussulmans with respect to decisions of the Judicial Committee of the Privy Council, the Under Secretary for India had taken no notice of his statements, but had confined himself to a flat contradiction. The noble and learned Lord on the Woolsack had also blamed him for impugning a decision of the Privy Council, and said that his course ought to have been to ask Her Majesty's Government to alter the law as laid down by the Privy Council. But how was the alteration to be asked for unless a case were made out, and that could hardly be done without implying that the Privy Council decision was unsatisfactory. 1438 Under these circumstances he had written an article in The Asiatic Quarterly Review of January last, advocating the appointment of a Hindu and a Mussulman lawyer to act as assessors in Indian cases; a course for which there were precedents in the Privy Council in ecclesiastical cases, and in the House of Lords in Admiralty cases. He had learned since this article was published that the India Office would reply that there were no persons in India fit to be assessors. Now Mr. Justice Amir Aly was perfectly fit to be an assessor for Mussulman cases, and whenever he has finished his time for being entitled to half his pension as a High Court Judge, he would be ready to come to this country. If he is fit to be a High Court Judge, it cannot be said that he is not fit to be an assessor to the Judicial Committee. With regard to a Hindu assessor, Mr. Bhattacharya, the author of a commentary on Hindu law, is stated to be in other ways, such as knowledge of Sanskrit, perfectly fit to be a Hindu assessor. Other Hindu names had been given him, but as they do not equal Mr. Bhattacharya in merit, it is unnecessary to refer to them. My Hindu correspondent very properly observes that:—The difficulty of finding assessors for the Privy Council is, no doubt, great. But if the appointments were to be made, the difficulty will no longer be felt, for persons will qualify themselves. At the present time the number is extremely few. Another difficulty is the unknown conditions of the appointment. Persons may be fit but not willing to cross the seas, or reside in England. The question of remuneration and the position to be assigned to assessors is another great factor. I take it that the assessor must be familiar with the English language, and must have mastery over the Hindu and Mussulman law in the original, not the English Acts, but Arabic and Sanskrit treatises on the subject.This opinion seems very reasonable, and what the writer says would dispose of the objection, even if well founded, of there being no person fit. I would suggest that, if Her Majesty's Government were willing to entertain the proposal favourably, both the position and remuneration required would be provided for without any trouble by appointing two such assessors to be members of the Council of the Secretary of State for India. As the noble Earl the Under Secretary of State for India 1439 had not accepted his statements with regard to a Privy Council decision, last year, perhaps he would be pleased to hear a Resolution which had been passed in Bengal:—That the heartfelt thanks of this association be conveyed to Lord Stanley of Alderley for having, in the House of Lords, given expression to the views and feelings of the Mussulman community in India with regard to the recent decision of the Privy Council on the question of Vakf, which the Mussulmans consider as inconsistent with the provisions of their law and religion, and as tending to disturb many of their long-cherished social, charitable, and religious institutions, and to render insecure the existing titles to large properties throughout India.He would add that he had asked a legal gentleman to revise an article in The Asiatic Quarterly, so as to avoid, if possible, all expressions displeasing to the noble and learned Lord on the Woolsack. Besides those points in Privy Council decisions, which he mentioned as being unsatisfactory, a competent person in the India Office had told him that the Privy Council Judges could not understand what an impartible estate was. Perhaps there was more. unwillingness than inability. To understand this, it was not necessary to read Mr. Bhattachariya's book; a much more readable description and explanation of its origin is to be found in the "Cité Antique" of M. Fustel de Coutanges, who describes the primitive institutions of the Greeks and the Romans, and shows how they were identical with those of the Hindus, all these laws and institutions having been derived from principles common to those three nations. The Judicial Committee as regards Indian cases requires strengthening by means of the English Judges it receives from India, and the Indian Administration has for many years been endeavouring to diminish the dignity of the Judicature. Dr. Field, an ex-Judge of the High Court of Calcutta, in an article named "Government and the Calcutta. High Court," in the April number of The Asiatic Quarterly Review, dates this policy from 35 years ago. He complains of the withholding the dignity of knighthood from the Judges of the High Court presiding over the administration of justice to a population of seventy millions; whilst the Judges of the old Supreme Court 1440 were knighted, though the limits of its ordinary jurisdiction extended no further than the town of Calcutta. He points out that a knighthood conferred after some years of service, or upon retirement, suggests considerations inconsistent with a proper conception of judicial independence. Then the precedence of the Calcutta Judges was taken away; Dr. Field asks,—on what grounds that did not exist when the High Courts were first established, at which time such a change as part of the general scheme would have been wholly invidious.The next step in the Policy of lowering the status of the High Court Judges was to reduce their salaries. The position of a Calcutta Judge once worth more than £5,000 a year, is now worth little more than half that sum. The last step recently taken to diminish the worth of these appointments, and further lower the status of the Court, is to extend the period of actual service qualifying for full pension from 11½ to 13½ years. Dr. Field then quotes from an address presented last September to the retiring Chief Justice by representatives of the European and Indian communities:—It is with regret that we have noticed that in India, where a proportion of the Judges of the highest courts in the land are drawn from the Bar of England, the emoluments and conditions of service have been so altered as to make it increasingly difficult to obtain for the High Courts the services of men who it is most desirable on all grounds should be attracted to them, while at the same time the inducements to Indian civilians and others, who have sought a career in this country, to aspire to the honour and dignity of a seat on the Bench of the High Courts, have suffered in a manner which we cannot believe to be for the benefit of the country; and while we are fully alive to economy in all Departments of the State, we yet hold that it is a mistaken policy to apply economy to the High Courts, whim it is exercised at the risk of sacrificing their efficiency.The retiring Chief Justice, whilst agreeing with the views of the address, stated that a very large number of the more experienced of the District Judges retired upon the promulgation of the new rules. The conditions of life in India are improved for the Civil Service by the Hill Stations; but the Judges of the Calcutta Court do not share in these advantages, as they remain in the plains throughout the hot weather. Besides the complaints made by Dr. Field, it may be observed 1441 that for some time some Lieutenant Governors of Bengal and other Civil servants under them have treated the high Courts and the magistracy with less than fitting respect. Much satisfaction was therefore caused by a report that the late Government thought of sending their Lord Chancellor as Viceroy to India, and it was hoped that this would secure respect for the dignity of the judicial body. With regard to Indians having seats on the Council of the Secretary of State, besides other advantages, it would be useful to the Secretary of State and to others to have responsible councillors to consult. I may give as an instance, more than 20 years ago a C. D. Blue-book was issued, and I was in doubt how to vote should it have come to a vote; and I consulted the late Cardinal Manning. He asked me for the Blue-book, which I gave him, but I failed to obtain an opinion from him. I then consulted the agent of one of the dispossessed Princes of India, and after reflection he said, that as these women were doing wrong, they had no right; and others had no right to complain on their behalf of the regulations the Government might, make with respect to them.
§ THE LORD CHANCELLOR (Lord HALSBURY)
said that although the noble Lord's Motion was in the form of one question it comprehended two different subjects. He only proposed to say something in respect of the first part of the question. The noble Lord expressed a hope that he should have forgotten what he said last year. He was very glad to find that the noble Lord had forgotten what he said—[laughter]—because his objection to the noble Lord then was that he proceeded to discuss at considerable length, and with very scant courtesy towards the learned Judges who had decided it, the question that had been decided by the Judicial Committee of the Privy Council. That night he was bound to admit the noble Lord had entirely avoided any objection of that sort, and, but for his preamble, he should simply have said in reply to him that he was not able to advise Her Majesty's Government to appoint the assessors whom he suggested, even if it were not a sufficient answer to say that they had no power to do it. He did not agree that there had been any real dissatisfaction with the decision to which 1442 the noble Lord referred. Where there were two sides to a question he presumed the side against whom the decision had been recorded would be dissatisfied with it, and if they were to proceed to alter the law in every case where there would be any dissatisfaction at the decision arrived at there would be a constant oscillation between one law and another. Although there was a. little technicality in it, perhaps their Lordships would allow him to explain what the decision was. The case come before the Judicial Committee of the Privy Council in which the validity of a certain settlement was in question. There was in the Mahommedan law, as there was in the English law, an objection against perpetuity—that was to say, the right of one person to stretch his arm at great length beyond the grave and determine what should be the destination of property for a. very long period. The particular settlement in question was one in which it was sought to get out of the provision against perpetuity in the Mahommedan law by having, at the end of it, a bequest in favour of the poor, because, again, the Mahommedan law, as the English law, recognised the existence of a charitable trust. The only question of Debate was the validity of this particular instrument. The people who had devised this ingenious contrivance had made a settlement which was practically in perpetuity. It was for the family or friends—anybody who might, claim relationship by affinity or consanguinity with the settlor, and in the event of these all being exhausted, then, "for the benefit of the poor." The Judicial Committee of the Privy Council decided that that was a mere colourable addition, that the true character of the instrument was to establish a perpetuity and that the addition that in the event of a failure of all these persons it should then be a charitable trust, was only a colourable evading of the effect of the law. The noble Lord would observe, therefore, that the effect of the decision was simply that that particular instrument, that that particular contrivance, was invalid. That was a decision affirming the decision of the High Court of Calcutta, and that decision was based on the previous decision of the native courts in which the same conclusion had been arrived at. He need not point out that that was not a decision which affected to 1443 alter, or did alter, the Mahommedan law. He did not know whether the noble Lord suggested that, because there was dissatisfaction with the decision, there should be persons appointed who should instruct the Judicial Committee of the Privy Council in Indian law. It appeared to him that that certainty assumed that they were unable to do what they had been doing now for many years to, he submitted, the great satisfaction of Her Majesty's Indian subjects, and he had never heard, until the noble Lord himself suggested it, that their decisions had been questioned upon any ground of their ignorance of the matter with which they were dealing. They were competent, he presumed, to construe the English language; and the documents from which its decisions were obtained, and upon the authority of which they rested, were English translations, and he need not say that it was the duty of the Judicial Committee of the Privy Council, a duty which he was quite certain they discharged, to acquaint themselves with what was the Mahommedan law, just as they acquainted themselves with decisions of other systems of law which it was their duty to administer. He thought it right to make this explanation, lest it should be supposed that the Judicial Committee had, in this particular case, gone out of their ordinary course. His general answer to the noble Lord must be that he did not think the Government were at all prepared to adopt a new system of administering justice in the Judicial Committee, there being, as he thought, no failure of justice in particular cases. The answer to the first part of the noble Lord's question was simply in the negative.
§ THE PRIME MINISTER (The Marquess of SALISBURY
As my noble and learned Friend has divided the question into two, perhaps I had better reply to the end of it. But I shall not deal with it in any more satisfactory way, because the only thing I can say is that it is not according to precedent to draw into discussion the use which Her Majesty may make of her prerogative of conferring 1444 honour, and I should be sorry to set a bad example in that respect.
*LORD STANLEY OF ALDERLEY
asked the noble and learned Lord on the Woolsack what further proof of the dissatisfaction in India could be given besides those already given. As to a colour of establishing a perpetuity; perpetuity is of the essense of a Vakf, and Sir Barnes Peacock had laid down with regard to Hindu perpetuities:—There is no rule in Hindu law which invalidates a conveyance or a gift inter vivos upon the ground of its creating a perpetuity. If it is contrary to policy to allow the Hindu law to prevail to its full extent, let that be modified by the Legislature, and not by the Judges.