India in disregard of these restrictions. The Indian Civil Service Act, 1861 (24 & 25 Vict. c. 54), validated all these irregular appointments in the past, but scheduled a number of appointments which, in the future, were to be reserved to members of the covenanted civil service 1. At the same time it abolished the rule as to seniority and removed all statutory restrictions on appointments to offices not in the schedule. And, even with respect to the reserved offices, it left a power of appointing outsiders under exceptional circumstances. This power can only be exercised where it appears to the authority making the appointment that, under the circumstances of the case, it ought to be made without regard to statutory conditions. The person appointed must have resided for at least seven years in India. If the post is in the Revenue or Judicial Departments, the person appointed must pass the same examinations and tests as are required in the case of the covenanted civil service. The appointment is provisional only, and must be forthwith reported to the Secretary of State in Council with the special reasons for making it, and unless approved within twelve months by the Secretary of State it becomes void 2. Councils The Indian Councils Act, 1861 (24 & 25 Vict. c. 67), modi- Indian fied the constitution of the governor-general's executive council and remodelled the Indian legislatures. A fifth ordinary member was added to the governorgeneral's council. Of the five ordinary members, three were required to have served for ten years in India under the Company or the Crown, and one was to be a barrister or advocate of five years' standing. Power was retained to appoint the commander-in-chief an extraordinary member 3. 3 Power was given to the governor-general, in case of his absence from headquarters, to appoint a president of the council, with all the powers of the governor-general except those with respect to legislation. And, in such case, the 1 This schedule is still in force. Digest, s. 93. 2 This provision still exists. Ibid. s. 95. Ibid. 39, 40. governor-general might invest himself with all the powers exercisable by the Governor-General in Council, except the powers with respect to legislation 1. For purposes of legislation the governor-general's council was reinforced by additional members, not less than six nor more than twelve in number, nominated by the governorgeneral and holding office for two years. Of these additional members, not less than one-half were to be non-official, that is to say, persons not in the civil or military service of the Crown 2. The lieutenant-governor of a province was also to be an additional member whenever the council held a legislative sitting within his province. The Legislative Council established under the Act of 1853 had modelled its procedure on that of Parliament, and had shown what was considered an inconvenient degree of independence by asking questions as to, and discussing the propriety of, measures of the Executive Government 3. The functions of the new Legislative Council were limited strictly to legislation, and it was expressly forbidden to transact any business except the consideration and enactment of legislative measures, or to entertain any motion except a motion for leave to introduce a Bill, or having reference to a Bill actually introduced 4. Measures relating to the public revenue or debt, religion, military or naval matters, or foreign relations, were not to be introduced without the governor-general's sanction. The assent of the governor-general was required to every Act passed by the council, and any such Act might be 1 See Digest, ss. 45, 47. 2 These provisions have been modified by the Act of 1892 (55 & 56 Vict. c. 14, s. 1). See Digest, s. 60. 3 It had, among other things, discussed the propriety of the grant to the Mysore princes. See Proceedings of Legislative Council for 1860, pp. 1343-1402. 4 24 & 25 Vict. c. 67, s. 19. As to the object with which this section was framed, see paragraph 24 of Sir Charles Wood's dispatch of August 9, 1861. The restrictions imposed in 1861 were relaxed in 1892 (55 & 56 Viet. e. 14, s. 2). Digest, s. 64. disallowed by the Queen, acting through the Secretary of State. The legislative power of the Governor-General in Council was declared to extend to making laws and regulations for repealing, amending, or altering any laws or regulations for the time being in force in the Indian territories now under the dominion of Her Majesty,' and to making laws and regulations for all persons, whether British or native, foreigners or others, and for all courts of justice, and for all places and things within the said territories, and for all servants of the Government of India within the dominions of princes and States in alliance with Her Majesty. But there were express savings for certain Parliamentary enactments, for the general authority of Parliament, and for any part of the unwritten laws or constitution of the United Kingdom whereon the allegiance of the subject or the sovereignty of the Crown may depend. An exceptional power was given to the governor-general, in cases of emergency, to make, without his council, ordinances, which were not to remain in force for more than six months 3. Doubts had for some time existed as to the proper mode of legislating for newly acquired territories of the Company. When Benares and the territories afterwards known as the North-Western Provinces were annexed, the course adopted was to extend to them, with some variations, the laws and regulations in force in the older provinces of Bengal, Behar, and Orissa. But when the Saugor and Nerbudda territories were acquired from the Marathas by Lord Hastings, and when Assam, Arakan, and Tenasserim were conquered in 1824, and Pegu in 1852, these regions were specially exempted from the Bengal Regulations, instructions, however, being given to the officers administering them to conduct their procedure in accordance with the spirit of the regulations, so Explained by 55 & 56 Vict. c. 14, s. 3. Digest, s. 63. 1 2 These powers were extended by 28 & 29 Vict. c. 17, s. 1, and 32 & 33 Vict. c. 98, s. I. See Digest, s. 63. See Digest, s. 69. far as they were suitable to the circumstances of the country 1. And when the Punjab was annexed the view taken was that the Governor-General in Council had power to make laws for the new territory, not in accordance with the forms prescribed by the Charter Acts for legislation, but by executive orders, corresponding to the Orders in Council made by the Crown for what are called Crown Colonies. Provinces in which this power was exercised were called 'non-regulation provinces' to distinguish them from the 'regulation provinces,' which were governed by regulations formally made under the Charter Acts. A large body of laws had been passed under this power or assumed power, and in order to remove any doubts as to their validity a section was introduced into the Indian Councils Act, 1861, declaring that no rule, law, or regulation made before the passing of the Act by the governor-general or certain other authorities should be deemed invalid by reason of not having been made in conformity with the provisions of the Charter Acts 2. The power of legislation which had been taken away from the Governments of Madras and Bombay by the Charter Act of 1833 was restored to them by the Act of 1861. The councils of the governors of Madras and Bombay were expanded for legislative purposes by the addition of the advocate-general and of other members nominated on the same principles as the additional members of the governor-general's council. No line of demarcation was drawn between the subjects reserved for the central and the local legislatures respectively; but the previous sanction of the governor-general was made requisite for legislation by the local legislature in certain 1 Chesney's Indian Polity (3rd ed.), pp. 58, 64. 2 Indian legislation subsequently became necessary for the purpose of ascertaining and determining the rules which had been thus validated in general terms. See Sir James Stephen's speech in the Legislative Council in the debate on the Punjab Laws Acts, March 26, 1872, and the chapter contributed by him to Sir W. Hunter's Life of Lord Mayo, vol. ii. pp. 214-221. 3 These provisions have also been modified by the Act of 1892. See Digest, ss. 71, 76, 77 cases, and all Acts of the local legislature required the subsequent assent of the governor-general in addition to that of the Secretary of State, and were made subject to disallowance by the Crown, as in the case of the governorgeneral's council. There were also the same restrictions on the proceedings of the local legislatures1. The governor-general was directed to establish, by procla mation, a legislative council for Bengal 2, and was empowered to establish similar councils for the North-Western Provinces and for the Punjab 3. These councils were to consist of the lieutenant-governor and of a certain number of nominated councillors, and were to be subject to the same provisions as the local legislatures for Madras and Bombay. The Act also gave power to constitute new provinces for legislative purposes and appoint new lieutenant-governors, and to alter the boundaries of existing provinces. The amalgamation of the supreme and sadr courts, that is Indian High to say, of the courts representing the Crown and the Company Courts Act, 1861. respectively at the presidency towns, had long been in contemplation, and was carried into effect by the Indian High Courts Act, 1861 5. By this Act the Queen was empowered to establish, by letters patent, high courts of judicature in Calcutta, Madras, and Bombay, and on their establishment the old chartered supreme courts and the old Sadr Adalat' Courts were to be abolished, the jurisdiction and the powers of the abolished courts being transferred to the new high courts. Each of the high courts was to consist of a chief justice and not more than fifteen judges, of whom not less than one See note 4, p. 100. 2 A legislative council for Bengal was established by a proclamation of January 18, 1862. 3 A legislative council was established for the North-Western Provinces and Oudh (now United Provinces of Agra and Oudh) in 1886, and for the Punjab in 1897. 88. 46, 47. Digest, s. 74. 24 & 25 Vict. c. 104. 6 The letters patent or charters now in force with respect to these three high courts bear date December 28, 1865. |