Page 466
Printed for the Cabinet. November 1949
SECRET
C.P. (49) 218
vis, il
1st November, 1949
Copy No. 31
CABINET
LÍABILITY, TO MILITARY SERVICE OF INDIAN CITIZENS RESIDENT IN THE UNITED KINGDOM
MEMORANDUM BY THE LORD PRIVY SEAL AND THE MINISTER OF LABOUR AND NATIONAL SERVICE
1. At their Meeting on 29th August (C.M. (49) 54th Conclusions, Minute 4) the Cabinet, when considering the proposed consequential legislation to deal with the position of India as a Republic within the Commonwealth, invited the Secretary of State for Commonwealth Relations, in consultation with the Law Officers, to submit a memorandum on the liability to military service of Indian citizens resident in the United Kingdom. The views of the Law Officers on the legal aspects are given in paragraph 9.
.
The Existing Position
2. Under the National Service Act, 1948, male British subjects ordinarily resident in Great Britain are liable to be called up for service in the Armed Forces of the Crown. The Act provides that men are not ordinarily resident if they are resident here, only for the purpose of attending a course of education or otherwise for a temporary purpose only; or if, being men who are either nationals or citizens of a Commonwealth country or who were born or are domiciled in any part of His Majesty's dominions outside Great Britain, they have been resident here for less than two years. There is also an exemption for men who are here solely in the service of their Government.
3. The powers of conscription under the existing National Service Act at present apply to men between 18 and 26. It may be noted that the great majority of Indian citizens between the relevant ages who are resident in this country are likely to be able to show that they are resident here for a temporary purpose or for the purpose of education. A draft of a National Service Bill to be enacted in the event of an emergency is now in preparation and is based on the above principles.
I
4. The then existing Commonwealth Governments were informed in 1939 (in connection with the Military Training Bill) that our conscription legislation would apply to British subjects ordinarily resident here, and the definition of ordinary residence now in use includes amendments suggested by South Africa. But at no stage have other Commonwealth Governments been asked to give or given their positive assent to the relevant provisions.
The Position in regard to Indians
5. If the legislation approved in principle by the Cabinet on 29th August is passed, all existing United Kingdom law, including the National Service Act, 1948, will continue to apply to Indian citizens as if they were British subjects and they will therefore be liable for military service, though the great majority of Indian citizens between the relevant ages are likely to be exempt, as being resident here for a temporary purpose or for the purpose of education.
The
*The Indian constitution provides that Indians resident outside India may opt to be citizens of India if any of their parents for grandparents were born in India. Page 466 of 1097
37792
B
11
2
Commonwealth Relations Office consider that, in Hayeof the geneal attitude of the Government of India in foreign policy (which is one of no entanglements) and of their strong dislike of our policy in Malaya, where United Kingdom troops are at present actively employed, it is unlikely that the Government of India will acquiesce in the conscription of Indian citizens into the United Kingdom forces. Their objection may well be one of principle that it is inconsistent with their dignity as a fully independent State that their citizens should be liable to con- scription by another country. Certainly they are likely to resist any such proposal unless it is put on a reciprocal footing and United Kingdom citizens in India are made liable to conscription in India. It is unlikely, of course, that they will resort to conscription in India for military service in time of peace. Conscription by the Government of India in the event of India being at war (which might be some form of local hostilities not affecting other parts of the world) is a serious. possibility. The conscription of Europeans into the ranks of the Indian Forces under Indian conditions of climate, diet and hygiene and on Indian rates of pay would be an intolerable hardship for those concerned. Any arrangement based on genuine reciprocity involving an actual call-up would seem therefore to be out of the question in relation to India, and, by implication, to Pakistan and Ceylon.
The Position as regards the Irish Republic
6. In considering the conscription of Indian citizens, it is necessary to bear in mind the decisions recently reached and announced in regard to citizens of the Irish Republic. Ministers stated in Parliament (see, in particular, the reply given by the Secretary of State for Commonwealth Relations on 26th Novem- ber, 1948 (Hansard, column 1590)) that citizens of Eire would have under the British Nationality Act, 1948, the rights of British subjects under our statute law and that those who were habitually resident in this country would be liable for military service. In the House of Lords on 15th December, 1948 (Hansard, columns 1122-3), the Lord Chancellor said that the position of Eire citizens in relation to war-time conscription would depend upon the conscription law; that Irish Republicans could be called up under the existing National Service Act; and that that would continue. When asked if it was the case that there was no intention of altering this position, the Lord Chancellor kept the position open by saying that various amendments of the law might have to be considered. The Lord Privy Seal, in reply to a question by Lord Simon on 8th February, 1949 (Hansard, columns 176-7), said that, by virtue of Section 3 (2) of the British Nationality Act, the National Service Acts would continue, as now, to apply to citizens of Eire who were ordinarily resident in Great Britain. The Prime Minister reiterated this in moving the second reading of the Ireland Bill (Hansard for 11th May, 1949, column 1865), and the point was several times made in the debate that if Irish Republican citizens were to receive the benefits of being treated as if they were British subjects they must also assume the obligations.
*
•
·
7. This position has, however, never been accepted formally by the Irish Republican Government. Mr. Costello, in reply to a question in the Dail on 15th December, 1948, stated that Irish citizens were liable under the existing United Kingdom National Service Act, but if they did not wish to serve in the British Forces they might return to Ireland. He then said that this position had been the subject of protests by the Irish Republican Government, that a new situation would arise on 1st January, 1949, when Irish citizens would no longer be British subjects under the law of Great Britain, and that no doubt this change would in due course be reflected in British legislation dealing with conscription. He did not suppose that in future the British Government would seek to impose compulsory military obligations on Irish Republican citizens resident in Great Britain other than those who had chosen the status of British subject or United Kingdom citizen.
8. The working party of officials which examined questions arising in connection with the Ireland Bill pointed out that, notwithstanding Mr. Costello's views, it was desirable that, as a theoretical measure, conscription of Irish Republican citizens should continue as it would provide a useful argument in the nation1100urt in support of the policy Batethe Irish Republic is not foreign "to the United Kingdom. In practice it was unlikely to give rise to
<<
bise
3
difficultatis those who objected to being conscriptası 97 the any Irish Republic. These recommendations of the working party were approved by the Cabinet on 12th January, 1948 (C.M. (49) 1st Conclusions, Minute 2).
Legal and Constitutional Considerations
(This paragraph states the views of the Law Officers.)
9. From the purely legal point of view the effect of the draft India. (Consequential Provisions) Bill is that the liability of Indian citizens to military service is preserved without their being British subjects (although they of course remain Commonwealth citizens). This liability may, however, be removed from them by Order-in-Council (under Clause 2 (4) of the Bill). An analysis of the provisions of the Bill in relation to the liability of Indian citizens to compulsory military service is contained in the Annex to this paper.
A not dissimilar question might arise in the case of Indian citizens as arose in the case of citizens of the Irish Republic, namely, whether it would be in accord with international comity for Indian citizens to be conscripted in this country otherwise than in pressing emergency, except with the agreement of India. The situation of an Indian Republic not owing any common allegiance to the Crown yet within the ambit of the Commonwealth is one for which it is difficult to find any precedent in international law. India, however, must probably be treated for this purpose, vis-à-vis the United Kingdom, as an independent sovereign community and the bond of common membership of the Commonwealth would not, it is submitted, give either the United Kingdom or India any rights in the matter of conscripting the citizens of the other without consent which it would not have against a foreign Power. If this is right it would seem not to be in accord with the principles of international comity for Indian citizens to be conscripted in the United Kingdom except with the consent of India, and vice versa.
:
At the same time, if only so long as India remains a member of the Common- wealth and tacitly or otherwise is party to the arrangement whereby under English municipal law Indian citizens are not treated as aliens in this country, India would presumably be taken to have agreed to her citizens being subjected to the liabilities incumbent on citizens of this country. Such consent could, however, be withdrawn at any time by India, and if it were withdrawn it would seem, if the above statements are correct, that from that time onwards her citizens could no longer be conscripted consistently with the observance of international comity.
The Problem for Solution
10. We may therefore have to face a refusal by the Government of India to agree to conscription of Indian citizens. It is very unlikely that they will overlook this question. If so, Indian citizens would very probably have to be exempted by legislation. If this is done, it will be still more difficult to maintain conscription of Irish Republican citizens. It is, however, clearly most diffcult to discontinue it, because the number of Irish Republican citizens working in this country is so large that great ill-feeling will be caused if they are exempt. In peace-time the Indian problem is of very small dimensions, but the Minister of Labour and National Service is not able to give an assurance that in all cases Indian citizens will qualify for exemption under the provisions of the Act summarised in paragraph 2 above. Cases are bound to arise in which the Ministry of Labour will be bound to call up Indians, though these will be insignificant in numbers. The Ministry of Labour are prepared to apply to Indians the same arrangement which they apply to citizens of the Irish Republic, namely, to give them the option of leaving this country instead of being called up..
Proposals
11. It is clear that no solution is to be found by the exemption of Indian citizens only. This would make the continued conscription of Irish Republicans most difficult and might well result in protests from Pakistan, and possibly Ceylon and South Africa, against the grant of special privileges to Indians. If Indians are to be exempted the only logical solution is to make the liability for military service apply to citizens of the United Kingdom and Colonies instead of to British subjects.
This would exempt all citizens of Commonwealth countries and (contrary to the recently declared policy) citizens of the Irish Republic. The Minister of Labour considers that it would cause muchpliscontent if persons who enjoy the14ights of United Kingdom citizens in this country escape their main liability, and he is, therefore, strongly opposed to this solution.
37792
B 2
241
+
4
Pagerhoofd Privy Seal considers that, having regard to the International
status now attained by other Commonwealth countries, to the fact that the best opinion in international law is that the conscription of citizens of a foreign country is contrary to the comity of nations, and to the new citizenship legislation in the Commonwealth, it will become impossible to continue to conscript the citizens of other Commonwealth countries without the consent of the Governments of those countries. He considers that, if any Commonwealth country were to object to the application of the existing National Service Act to their citizens, there would be no alternative but to exempt them.
This would be necessary both in the interests of our relations with that country and because, in the face of objections, we could not treat Member States of the Commonwealth less favourably than we consider ourselves bound by international law to treat foreign countries. If, however, consents were sought at the present time the Government of the Irish Republic and the Government of India would certainly refuse and the South African Government would probably do so also. This might lead to other refusals.
+
13. In view of the difficulties seen by the Minister of Labour to the exemption of anyone who enjoys the privileges of a United Kingdom citizen, the only alterna- tive course is to endeavour to secure an understanding with the Government of India. To have any chance of success such an approach would have to be confined to peace-time conscription under the existing Act, and be accompanied by an assurance that only an insignificant number of cases in which Indian citizens have to be conscripted will arise in practice, and that all these persons will be given the option to leave this country. It will also be necessary to say that conscription for military service will not be applied to Indian citizens in time of war without further consultation with the Government of India. If the Govern- ment of India say that they must have a reciprocal right to conscript United Kingdom citizens in India, we should say that we concede the right in time of peace on the understanding that the age groups and the basis of exemption would be the same as in this country and that, in any cases in which a liability is enforced, the person in question will be permitted to leave India and be given reasonable time in which to do so. It is conceivable that the Government of India will acquiesce in an arrangement on this basis and not make an issue of principle of the matter, in which case the difficulties about the Irish Republic can be avoided. If, as a consequence of making this arrangement with India, any other Common- wealth Government demanded a similar arrangement, it would have to be conceded.
14. But the position is essentially different in regard to war-time conscription. In war-time the number of persons liable to military service is much greater and there is no doubt that a, considerable number of Indian citizens, would become liable. This happened, in the last war. It would probably be impracticable to return all these people to India. Moreover, the Government of India, would have much stronger objections to their citizens being conscripted for war service, at any rate unless they were in accord with us in the particular circumstances. They are, therefore, very unlikely to accept conscription of their citizens in time of war in advance of the particular situation arising. Such consent, may be more readily forthcoming from some countries (and particularly the Irish Republic) in time of war, both because of the force of circumstances and because it might be possible in the case of any Commonwealth country which declined to have its citizens conscripted into the military forces to secure its agreement to their conscription into non-combatant forces or their subjection to direction as to their civil employ- ment. The Lord Privy Seal therefore considers that it should be accepted in principle now that any legislation providing for conscription in war-time of citizens of Commonwealth countries in this country will have to be based on the consent of Commonwealth Governments, to be sought (subject, it may be, to Ministerial review at the time) when war is considered imminent..
•
j
15. If it proves possible to obtain an arrangement with the Government of India on the lines indicated in paragraph 13 above, it will clearly be desirable that it should not receive any publicity. If such an arrangement were made public it would probably increase the difficulties of the Government of India in accepting it and it would certainly become necessary for them to lay great emphasis on the assurance that Indian citizens will have the option to leave the United Kingdom fo they age called up. This makes it page defequential Pro- the matter should not be raised in the debates on the proposed India visions) Bill in Parliament. The Lord Privy Seal would therefore propose
that
5
an approach aged 450fde the Leaders of the Opposition Pagboth Houses A7d to other leading Opposition personalities who might raise the subject and to explain to them the delicacy of the position.
16. A decision on this matter is necessary now because the subject will have to be dealt with in discussions with the Government of India on the proposed. consequential legislation about India. These are to be held with Sir G. Bajpai, who will be in the United States until late in November, but has agreed to come to London for discussion of this subject in the second week of November. The Bill will have to be finalised and introduced immediately thereafter.
17. To sum up, it is proposed—
(1) To approach the Government of India during the consultations on the proposed India (Consequential Provisions) Bill for an arrangement on the lines indicated in paragraph 13 above.
(2) That it be accepted that conscription for military service of citizens of Commonwealth countries in war-time may have to be made dependent upon the consent of Commonwealth Governments, to be sought when war is imminent. (3) That, if the approach to the Government of India under (1) above fails,
the matter should be brought up for further consideration.
A.
1st November, 1949.
G. A. I.
ANNEX
ANALYSIS OF LEGAL POSITION UNDER INDIA (CONSEQUENTIAL PROVISIONS) BILL
6 6
1. Section 1 of the National Service Act, 1948, provides that British subjects ordinarily resident in Great Britain are to be liable to military service. Section 34 (4) of that Act provides that a person who is resident in Great Britain is to be deemed "ordinarily resident" unless his residence is (1) for purposes of attending an educational course; (2) temporary; (3) in the case of a citizen of some part of His Majesty's dominions outside Great Britain," if he has been resident in Great Britain for less than two years.
2. Section 1 of the British Nationality Act, 1948, provides that a citizen of India shall have the status of a British subject, and may be known indifferently either as a British subject or Commonwealth citizen. Thus, the combined effect of these two Acts before India declared itself a Republic was that an Indian citizen who was ordinarily resident in this country in the sense above described was clearly liable to military service. When, however, India declared itself a Republic two questions arose (1) it was thought that Indians would probably object to being known as British subjects as this would seem to involve an allegiance on their part to the Crown; (2) it was thought that it could no longer be said that India was "part of His Majesty's dominions outside Great Britain "if India was not, then Indian citizens resident here would lose the benefit of the exemption above referred to in favour of citizens "of some part of His Majesty's dominions outside Great Britain who had been resident here for less than two years.
""
3. The proposed Bill is designed inter alia to get over these difficulties, as follows: Clause 1 says that Indian citizens are no longer to be "British subjects," but remain Commonwealth citizens. This relieves them of the semblance of owing allegiance to the Crown, but it would also, of course, take them outside the scope of Section 1 of the National Service Act, 1948, as they would no longer be liable to military service, not being "British subjects. Clause 2, however, brings them back within Section 1 of the National Service Act by saying in effect that, although Indian citizens are no longer British law shall continue to apply to them as if they were and as if nevertheless liable to
subjects, esta become Republic. The result of this is that Indian citizens
(1) are no longer to be known as British subjects; (2) are
242
Page 471.
6
Page 47.1 of 1097. military service; (3) (since the fact that India is a Republic is for this purpose to be disregarded) enjoy the exemption in favour of residents with less than two years' residence. In substance, therefore, their liability to military service is preserved without their being "British subjects" (although they of course remain Commonwealth citizens).
4. There is one further clause in the Bill to which attention should be called, and that is Clause 2 (4); which enables His Majesty by Order-in-Council (subject to annulment by either House of Parliament) to modify existing law as may appear to him to be necessary or expedient in view of India's becoming a Republic.' This would enable Indian citizens to be relieved of liability to military service.
.i
5. The result of this legal device is thus to make Indian citizens liable to military service in the same way as British subjects, although they are not themselves British subjects, and to enable this liability to be removed from them by Order-in-Council, if need be.
: