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government of India,'' the Government was transferred from the East India Company to the Crown, and it was provided that all the powers of the Company and of the Board of Control should be exercised by a Secretary of State, in concert, in certain cases, with a Council. This Act, of which I shall again have to speak, applied almost solely to the Government in England, and the Government in India was carried on as before.
In 1861 important changes were made in the constitution both of the Supreme and Provincial Governments in India. The ‘Indian Councils Act?? then passed still regulates, for the most part, the Governments in India. I shall describe its principal provisions.
The Governor-General and the members of his Council are appointed by the Crown. No limit of time is specified for their tenure of office, but custom, not often disregarded, has fixed it at five years. The term * Viceroy' has been commonly applied to the GovernorGeneral since the transfer of the Government to the Crown, but it is not recognised by law. There are five ordinary members of Council, and, by an Act passed in 1874, a sixth member may, at the discretion of the Crown, be appointed for public works. Three of the members must have served in India for at least ten years; two of them are members of the Covenanted Civil Service, and the third is a military officer ; but this distribution is a matter of custom, not of law. One of the two remaining members must be a Barrister, or a member of the Faculty of Advocates in Scotland, of not less than five years' standing; he has charge of the legislative department.
The fifth member has charge of the finances. The Commander-in-Chief in
1 21 and 22 Vic. c. 106.
2 24 and 25 Vic. c. 67. 3 37 and 38 Vic. c. 91.
India may also be, and in practice always is, an extraordinary member of the Council. The Governors of Madras and Bombay become extraordinary members if the Council meets within their presidencies. Whenever it is declared by the Governor-General in Council to be expedient that the Governor-General should visit any part of India without his Council, he may nominate one of the members of his Council to be President of the Council. The President, during the absence of the Governor-General, exercises the powers which the Governor-General may exercise at meetings of the Council, except that of assenting to or withholding assent to laws; and the Governor-General, when so absent, may himself exercise all or any of the powers which he might exercise as Governor-General in Council, except the power of making laws. The Council may assemble at any place in India which the GovernorGeneral in Council appoints.
For the purposes of legislation, additional members are nominated to the Council. The Legislative Council is often spoken of as if it had a separate existence, but this is a mistake; only one Council is known to the law. Not less than six nor more than twelve additional members are nominated by the GovernorGeneral, and they join the Council when it meets for legislative purposes.
Not less than one-half of the number must be persons not holding offices under the Government; some of them are always Natives of India. The Lieutenant-Governor of any province in which the Council may meet acts as an additional member.
The official element in the Council is so strong that the Government can always command a majority. The Act was designedly passed in such a form that the Council, when it meets for legislative purposes, has no power to interfere with any of the functions of the executive Government. It can occupy itself with no matters except those directly connected with the special legislative business transacted by it.
Certain Acts of Parliament under which the Government of India is constituted cannot be touched, and no law can be made affecting the authority of Parliainent or allegiance to the Crown, but with these exceptions there are no restrictions on the legislative powers of the Governor-General in Council. Measures affecting the public debt or revenues of India, the religion of any of her Majesty's subjects, the discipline or maintenance of the military or naval forces, and the relations of the Government with Foreign States, cannot be introduced by any member without the previous sanction of the Governor-General. Every Act requires the GovernorGeneral's assent. The assent of the Crown is not necessary to the validity of an Act, but the Crown can disallow
Act that has been passed. Apart from these ordinary legislative powers, the Governor-General in Council was authorised in 1870 1 to make, without calling in the additional members,
Regulations' having the force of law for the less advanced parts of the country, where a system of administration simpler than that in force elsewhere is desirable. The effect of this was to put on a legal basis the administration of the so-called · Non-Regulation Provinces.'
Further, in cases of urgent necessity, the GovernorGeneral can, on his own authority and without reference to his Council, make ordinances which have the force of law for six months. This power was given by the Act of 1861 for the first time. It has seldom been exercised, and only for reasons of temporary convenience.
1 33 Vic. c. 3, sec. 1.
The constitution of the Executive Governments in Madras and Bombay was not altered by the Act of 1861, and they still retain some signs of their former dignity and partial independence. In certain matters they correspond directly with the Secretary of State, a privilege not possessed by other provincial Governments. The Governor and the members of Council are appointed by the Crown. The Governor is usually an English statesman sent from England. The local Commander-in-Chief and two members of the Civil Service constitute the Council. The power of legislation, which had been taken away in Madras and Bombay by the Act of 1833, was restored in 1861. Much of the description which I have given of the manner in which legislative business is carried on by the Council of the Governor-General is equally applicable to the Councils of the provincial Governments. The Governor nominates not less than four, nor more than eight additional members, who join the Council when it meets for legislative purposes, and at least half of them must be non-official persons. No law is valid until sanctioned by the Governor-General. The powers of the Governor-General in Council to legislate for all matters throughout India are not affected by the establishment of the local legislatures, but, as a general rule, the latter are left to deal with subjects of local and provincial interest. They cannot repeal or amend any Act of Parliament, or any law passed in India before the time when the Indian Councils Act of 1861 came into operation, nor, except with the previous sanction of the Governor-General, can they take into consideration any measure affecting the public debt, customs, imperial taxation, currency, the post office and telegraph, the penal code, religion, the military and naval forces, patents, copyright, or relations with Foreign States. In the other great provinces of India the Governments are differently constituted. Bengal, the NorthWestern Provinces, and the Punjab, are administered by Lieutenant-Governors ; they must be chosen from officers in the service of the Crown who have served in India for at least ten years ; they are appointed by the Governor-General with the approval of the Crown; and, with one exception, they have always been members of the Covenanted Civil Service. The Lieutenant-Governors have no Councils for executive business, but the Governor General in Council may establish in each province a Council for legislative purposes only. This power has been exercised in Bengal and in the NorthWestern Provinces; their Legislative Councils are precisely similar to those in Madras and Bombay, the Lieutenant-Governor taking the place of the Governor. The Governments of Burma, the Central Provinces, and Assam, are administered by Chief Commissioners. Excepting in name and dignity and in amount of salary and patronage, there is little difference between them and Lieutenant-Governors.
I must now speak of the manner in which the executive business of the Governor-General in Council is transacted. The system is very different from that in force under the Government of the East India Company. Although after the Act of 1793 the power of the Governor-General to overrule his Council was not open to question, the fundamental idea, on which previous legislation had been based, still remained, that the Government was to be carried on by the Governor-General in concert with the whole Council. All public business of every kind, however trivial, was supposed to come before all the members of the Government. Questions
1 5 and 6 Will. IV. c. 52, sec. 2, and 16 and 17 Vic. c. 95, sec. 16.