Monday, December 26, 2011

Pakistan and Section 93 of the Government of India Act 1935

Yasser Latif Hamdani has articles (1, 2, 3) in the Daily Times of Pakistan, on the vexed question of how democratic in spirit Jinnah was around 1947. These articles were provoked by a journalist (probably Najam Sethi, Aapas Ki Baat, December 14, 2011, 1, 2) who wrote:

A leading journalist, who is one of the finest journalists in my opinion, recently levelled four accusations at Jinnah, which he described as the reason Pakistani democracy has not flourished. First, that Jinnah chose to be the Governor-General instead of prime minister; second, that he concentrated power in his own hands; third, that he dismissed the NWFP [now Khyber Pakhtunkhwa] Assembly; and fourth, that Jinnah chose Urdu as the ‘national’ language.

The purpose of this note is to examine one of the claims made in the Hamdani article and show it to be likely to be wrong.

Regarding the dismissal of the NWFP assembly, Hamdani writes:
To begin with, it is important to note again that Pakistan opted to omit Section 93 powers, which allowed the central government to dismiss provincial legislatures. India, on the other hand, retained these powers and used the same on several occasions to dismiss provincial legislatures.
Section 93 of the Government of India Act 1935 allowed under certain circumstances for the Governor of a province to take over the powers of the legislature These powers were later included in Article 356 of the Indian Constitution. As explained here.

Article 356, it is obvious, is inspired by sections 93 of the Government of India Act, 1935. Section 93 of the 1935 Act provided that if a Governor of a province was satisfied that a situation has arisen in which the government of the province cannot be carried on in accordance with the provisions of the said Act, he could, by proclamation, assume to himself all or any of the powers vested in or exercisable by a provincial body or authority including the Ministry and the Legislature and to discharge those functions in his discretion. The only exception was that under this section the Governor could not encroach upon the powers of the High Court. (Section 45 conferred a similar power upon the Governor-General with respect to the Central Government/Central Legislature).

Section 8(2)(c) of the India Independence Act of 1947 however said, that apart from provisions made by the new Constituent Assemblies, the dominions would continue to be governed by the Government of India Act 1935, provided
....(c)    so much of the said provisions as requires the Governor-General or any Governor to act in his discretion or exercise his individual judgment as respects any matter shall cease to have effect as from the appointed day;
The India Independence Act of 1947 was to result in the two new dominions of India and Pakistan, and adaptation orders were written to particularize this for each of the two dominions. The Pakistan Adaptation Act was written with the advice from the Pakistan Cabinet (i.e., Jinnah & co.), and the Pakistan Cabinet insisted on adding to the Section 93 powers. Mountbatten resisted this based on the above section 8(2)(C) and his position was that the Pakistan Constituent Assembly should take up the issue.

Therefore it is likely wrong that "Pakistan opted to omit Section 93 powers". Moreover, section 8(2)(C) would have applied to India until the adoption of the constitution of 1950.

Here are Transfer of Power Papers excerpts (The Transfer of Power 1942-7, Volume XII covering 8 July - 15 August 1947,  Editors Nicholas Mansergh, Penderel Moon).

Mountbatten to the Earl of Listowel, Karachi, August 13, 1947
#464, page 707

At today's meeting in Karachi Pakistan cabinet urge[d] me to include in Pakistan Adaptation Order provision retaining Section 93 in modified form, text of which follows in my immediately succeeding telegram.

2. My Pakistan colleagues claim that this adaptation is neither ultra vires nor improper because the Governor-General acts on advice.   My Reforms Secretariat, however, are of the view that any such adaptation would be a fraud on Independence Act, Section 8(2)(C) of which abolishes discretionary powers.  My Pakistan colleagues rejoin to this that provincial administration on their scheme would be controlled not by Governor but by Governor-General acting on advice who would use Governor as a mere agent.   My advisers comment that this argument assuming it to meet objection based on Section 8(2)(C) only does at cost of producing by a process of ostensible adaptation a position wholly at variance with Government of India Act 1935 in that geographical field would be invaded wholesale by Central Government.

3. I have pointed out that Pakistan Government Constituent Assembly can pass the desired provision at any time, but my colleagues press for inclusion thereof in my Adaptation Order. I would be grateful for most immediate advice on constitutional position.

4. Cooke knows background.

Mountbatten to the Earl of Listowel, Karachi, August 13, 1947
#465, page 708

My immediately preceding telegram.  Begins. Section 93(1) If at any time the Governor-General is satisfied that a grave emergency exists whereby the peace or security of Pakistan or any part there or [?thereof] is threatened or that a situation has arisen in which the Government of a Province cannot be carried out in accordance with the provisions of this Act he may be Proclamation direct the Governor of a province to assume on behalf of the Governor General all or any of the powers vested in or exercisable by any provincial body or authority.  Any such proclamation may contain such incidental and consequential provisions as may appear to the Governor General to be necessary or desirable for giving effect to the objects of the Proclamation including provisions for suspending in whole or in part the operations of any provision of this Act relating to any provincial body or authority.

Provided that nothing in this subsection shall authorise the Governor General to direct the suspension of any of the powers vested in or exercisable by a High Court or to suspend either in whole or in part the operation of any provisions of this act relating to High Courts.

(2) Any such proclamation may be revoked or varied by a subsequent proclamation.

The Earl of Listowel to Mountbatten, India Office, August 14, 1947
#479, page 726

Your telegram No. 14K of 13th August.  It seems to me of doubtful legality to amend Section 93 in way desired by Pakistan Government by means of adaptations under Section 9 of Indian Independence Act. It would certainly seem inconsistent with the spirit of the Indian Independence Act.  Decsion whether or not to make it is mainly a political one and its doubtful legality seems to me conclusive argument against your including it in any adaptation order issued by you today.

2. I recognize that Pakistan Government genuinely feel this power to be essential for safety of Pakistan and it is not unreasonable that in conditions of India special reserve powers should exist for dealing with grave threats to security of the Dominion or Province or with breakdown of Dominion or Provincial constitutions.    I am however sure that you are right in suggesting that Pakistan Government's correct course is to seek such powers as they need from Pakistan Constituent Assembly which is now in session.

Viceroy's Personal Report No. 17, August 16, 1947
#489, item 54, page 770

54. That evening [August 13th in Karachi] I presided over a meeting of the Pakistan Cabinet at which the final Orders in Council amending the Government of India Act 1935 for Pakistan were passed. Not, however, without a final disagreement, for the Pakistan Cabinet wished me to include an Order by which the Governor-General, on advice of the central Ministry, could order a Provincial Governor to dismiss his Ministry and could govern the Province directly by issuing orders to the Governor. This was so like the much criticised Section 93 that I felt it impossible that the British transfer of power should be associated with the perpetuation of this system. However they were so insistent that I could only get out of it without a real row by saying that I would refer the question to the Secretary of State, fully knowing that he would uphold my view.

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