CHAPTER II

SUMMARY OF EXISTING LAW

THE administration of British India rests upon English Acts of Parliament, largely supplemented by Indian Acts and regulations1.

Govern

of State.

At the head of the administration in England is the Home Secretary of State, who exercises, on behalf of the Crown, ment. the powers formerly exercised by the Board of Control and Secretary Court of Directors, and who, as a member of the Cabinet, is responsible to, and represents the supreme authority of, Parliament 2.

of India.

He is assisted by a council, the Council of India, originally Council fifteen in number, but now, under an Act of 1889, being gradually reduced to ten. The members of the council are appointed by the Secretary of State, and hold office for a term of ten years, with a power of reappointment under special circumstances for a further term of five years. There is also a special power to appoint any person having professional or other peculiar qualifications' to be a member of the council during good behaviour. At least nine members of the council must be persons who have served or resided in British India for not less than ten years, and who have left British India not more than ten years before their appointment. A member of the council cannot sit in Parliament 3.

The duties of the Council of India are to conduct, under the direction of the Secretary of State, the business transacted in the United Kingdom in relation to the government of

The best authorities for the existing system of administration are
Sir John Strachey's India (3rd ed., 1903), Sir W. Hunter's Indian Empire,
Chesney's Indian Polity (3rd ed., 1894), and the latest of the Decennial
Reports on the Moral and Material Progress of India (1904).
3 Ibid. 2, 3.

2 Digest, s. 2.

Staff of

India
Office.

Indian revenues.

India and the correspondence with India. The Secretary of State is president of the council, and has power to appoint a vice-president 1.

Every order proposed to be made by the Secretary of State must, before it is issued, be either submitted to a meeting of the council or deposited in the council room for seven days before a meeting of the council. But this requirement does not apply to orders which, under the old system, might have been sent through the secret committee 2.

In certain matters, including the expenditure of the revenues of India, orders of the Secretary of State are required by law to obtain the concurrence of a majority of votes at a meeting of his council, but in all other matters the Secretary of State can overrule his council. Whenever there has been a difference of opinion in council any member has a right to have his opinion, and the reasons for it, recorded 3.

The council is thus, in the main, a consultative body, without any power of initiation, and with a limited power of veto. Even on questions of expenditure, where they arise out of previous decisions of the Cabinet, as would usually be the case in matters relating to peace or war, or foreign relations, it would be very difficult for the Council to withhold their concurrence from the Secretary of State when he acts as representative and mouthpiece of the Cabinet.

For the better transaction of business the council is divided into committees 4.

The establishment of the Secretary of State, that is to say the permanent staff constituting what is popularly known as the India Office, was fixed by an Order of the Queen in Council made under the Act of 18585. It is divided into departments, each under a separate permanent secretary, and the committees of the council are so formed as to correspond to these departments.

All the revenues of India are required by law to be received
2 Ibid. 12-14.
3 Ibid. 10.
5 Ibid. 18.

'Digest, ss. 5-10.

+ Ibid. II.

for and in the name of the King, and to be applied and disposed of exclusively for the purposes of the Government of India 1. The expenditure of these revenues, both in India and elsewhere, is declared to be subject to the control of the Secretary of State in Council, and no grant or appropriation of any part of the revenues is to be made without the concurrence of a majority of the votes at a meeting of the Council of India 2. Except for preventing or repelling actual invasion of His Majesty's Indian possessions, or under other sudden and urgent necessity, the revenues of India are not, without the consent of both Houses of Parliament, to be applicable to defraying the expenses of any military operation carried on beyond the external frontiers of those possessions by His Majesty's forces charged upon those revenues 3.

The accounts of the Indian revenues and expenditure are Audit. laid annually before Parliament, and the accounts of the Secretary of State in Council are audited by an auditor, who is appointed by the King by warrant countersigned by the Chancellor of the Exchequer 4.

For the purpose of legal proceedings and contracts, but Contracts and legal not for the purpose of holding property, the Secretary of proceedState in Council is a juristic person or body corporate by ings. that name, having the same capacities and liabilities as the East India Company 5. He has also statutory powers of contracting through certain officers in India ".

ment in

At the head of the Government in India is the governor- Governgeneral, who is also viceroy, or representative of the King. India. He is appointed by the King by warrant under his sign governormanual, and usually holds office for a term of five years 7.

The

general.

He has a council, which at present consists of six members, The besides the commander-in-chief, who may be, and in practice governoralways is, appointed an extraordinary members.

1 Digest, s. 22.

2 Ibid. 23. See, however, the practical qualifications of this requirement noted above.

general's council.

The Governor of Madras or Bombay is also an extraordinary member of the council whenever it sits within his province (which, in fact, never happens 1).

The power given by an Act of 1874 to appoint a sixth ordinary member specifically for public works purposes was made general by an Act of 1904.

The ordinary members of the governor-general's council are appointed by the Crown, in practice for a term of five years. Three of them must be persons who, at the time of their appointment, have been for at least ten years in the service of the Crown in India, and one must be a barrister of England or Ireland, or a member of the Faculty of Advocates of Scotland, of not less than five years' standing 2.

If there is a difference of opinion in the council, in ordinary circumstances the opinion of the majority prevails, but, in exceptional circumstances, the governor-general has power to overrule his council 3.

If the governor-general visits any part of India unaccompanied by his council, he is empowered to appoint some ordinary member of his council to be president of the council in his place, and, in such case, there is further power to make an order authorizing the governor-general alone to exercise all the executive powers of the Governor-General in Council 4.

The official acts of the central Government in India are expressed to run in the name of the Governor-General in Council, often described as the Government of India 5. The executive work of the Government of India is distributed among departments which may be compared to the departments of the central Government in England. There are at present nine of these departments-Finance, Foreign, Home, Legislative, Revenue and Agriculture, Public Works, Commerce and Industry, Army, and Military Supply. At the head of each of them is one of the secretaries to the 1 Digest, s. 40. 4 Ibid. 45, 47 5 Legislative sanction for this name is given by the Indian General Clauses Act (X of 1897, s. 3 (22)).

2 Ibid. 39.

3 Ibid. 44.

Government of India, who corresponds to the permanent secretary in England, and each of them, except the Foreign Department, is assigned to the special care of one of the members of council. The Foreign Department is under the immediate superintendence of the viceroy, who may be thus called his own Foreign Minister, although members of the council share responsibility for such matters relating to the department as come within their cognizance.

Besides these nine departments of the Secretariat, there are special departments, outside the Secretariat departments but attached to some one of them. These special departments either transact branches of work which the Government of India keeps in its own hands, or exercise supervision over branches of work which are conducted by the Local Governments. Thus the Directors-General of the Post Office and of the Telegraph department, the Surveyor-General, and the newly constituted Railway Board, are at the head of departments which are centrally administered. On the other hand the Inspectors-General of Forests and of Agriculture, and the Directors-General of Education and of the Indian Medical Service, represent departments which are administered by the Local Governments but supervised by the Government of India.

In the transaction of business, minor questions are settled departmentally. Questions involving a difference of opinion between two departments, or raising any grave issue, are brought up to be settled in council.

The council usually meets once a week, but special meetings may be summoned at any time. The meetings are private, and the procedure is of the same informal kind as at a meeting of the English Cabinet, the chief difference being that one of the secretaries to the Government usually attends during the discussion of any question affecting his department, and takes a note of the order passed 1.

1 For a description of the mode of transacting business in council before the work of the Government was departmentalized,' see Lord Minto in India, p. 26, and as to the effect of departmentalizing, see Strachey, p. 60.