Government of India by the Crown. [21 & 22 Vict. c. 106, s. 2.] CHAPTER III DIGEST OF STATUTORY ENACTMENTS RELATING TO THE GOVERNMENT OF INDIA N.B.-The marginal references in square brackets [ ] indicate the enactments THE SECRETARY OF STATE IN COUNCIL. The Crown. 1. (1) British India (a) is governed by and in the name of His Majesty the King (b). (2) All rights which, if the Government of India Act, 1858, had not been passed, might have been exercised by the East India Company in relation to any territories, may be exercised by and in the name of His Majesty as rights incidental to the government of British India (c). (a) The expressions British India' and 'India' are defined by s. 124 of this Digest, in accordance with the Interpretation Act, 1889 (52 & 53 Vict. c. 63, s. 18), and the Indian General Clauses Act (X of 1897, s. 3 (7) (27) ). ८ The language used in the Act of 1833 (3 & 4 Will. IV, c. 85, s. 1) was: the territories now in the possession and under the government of the said company.' A similar expression was used in the Indian Councils Act, 1861 (24 & 25 Vict. c. 67, s. 22). Hence questions arose as to the application of the Acts to territories subsequently acquired. Those questions have, however, now been set at rest by s. 3 of the Indian Councils Act, 1892 (55 & 56 Vict. c. 14), which expressly declares the applicability of the Acts of 1833 and 1861 to territories subsequently acquired. (b) The Royal Titles Act, 1876 (39 & 40 Vict. c. 10), authorized the Queen, with a view to the recognition of the transfer of the government of India from the East India Company to the Crown, by Royal Proclamation, to make such addition to the style and titles appertaining to the Imperial Crown of the United Kingdom and its dependencies as to Her Majesty might seem meet. Accordingly the Queen, by proclamation dated April 28, 1876, added to her style and titles the words, 'Indiae Imperatrix, or Empress of India.' (London Gazette, April 28, 1876, 2667), and 'Emperor of India' forms part of the title of the present King. (c) These rights include the right to acquire and cede territory. See Lachmi Narayan v. Raja Pratab Singh, I. L. R. 2 All. 1, and p. 36 above, and note (a) to s. 36 below. The Secretary of State. [21 & 22 Vict. c. 2.—(1) Subject to the provisions embodied in this Digest, The Secretary of one of His Majesty's principal Secretaries of State (in this State. Digest referred to as the Secretary of State') has and performs all such or the like powers and duties in anywise 106, §. 3.] relating to the government or revenues of India (a), and all such or the like powers over all officers appointed or continued under the Government of India Act, 1858, as, if that Act had not been passed, might or should have been exercised or performed by the East India Company, or by the Court of Directors or Court of Proprietors of that Company, either alone or by the direction or with the sanction or approbation of the Commissioners for the Affairs of India, in relation to that government or those revenues and the officers and servants of that Company, and also all such powers as might have been exercised by the said Commissioners alone (b). (2) In particular, the Secretary of State may, subject to [3 & 4 Will. IV, the provisions embodied in this Digest, superintend, direct, c. 85, s. and control all acts, operations, and concerns which in anywise 25.] relate to or concern the government or revenues of India, and all grants of salaries, gratuities, and allowances, and all other payments and charges whatever out of or on the revenues of India. Vict. c. 106, s. 3.] (3) Any warrant or writing under His Majesty's Royal [21 & 22 Sign Manual which, before the passing of the Government of India Act, 1858, was required by law to be countersigned by the president of the Commissioners for the Affairs of India must in lieu thereof be countersigned by the Secretary of State (c). (4) There are paid out of the revenues of India to the [21 & 22 Vict. c. Secretary of State and to his under secretaries respectively, 106, s. 6.] The of India. [21 & 22 Vict. c. the like yearly salaries as may for the time being be paid to any other Secretary of State and his under secretaries respectively (d). (a) The term 'revenues of India' is retained here and elsewhere, though in an Act of Parliament it might now be more accurate to speak of the revenues of British India. (b) The Secretary of State is the minister through whom the authority of the Crown over India is exercised in England, and thus corresponds roughly to the president of the Board of Control (Commissioners for the Affairs of India), under the system which prevailed before the Act of 1858. He is appointed by the delivery of the seals of office, and appoints two under secretaries, one permanent, who is a member of the Civil Service, the other parliamentary, who changes with the Government. The Act of 1858 authorized the appointment of a fifth principal Secretary of State, in addition to the four previously existing (Home, Foreign, Colonial, and War). 6 66 The office of Secretary of State is constitutionally a unit, though there are five officers. Hence any Secretary of State is capable of performing the functions of any other, and consequently it is usual and proper to confer statutory powers in general terms on a (or the ") Secretary of State,' an expression which is defined by the Interpretation Act, 1889, as meaning one of Her Majesty's principal Secretaries of State. But in matters relating to India there are certain functions which must be exercised by the Secretary of State in Council. See Anson, Law and Custom of the Constitution (second edition), ii. pp. 167, 282. (c) See c.g. the provisions as to removal of officers below, s. 21. (d) i.e. £5,000 to the Secretary of State, £2,000 to the permanent Under Secretary, and £1,500 to the Parliamentary Under Secretary. The Council of India. 3.-(1) The Council of India consists of not more than fifteen and not less than ten members (a). (2) The right of filling any vacancy in the Council of India 106, ss. 7, is vested in the Secretary of State. 10, 11, 13. 32 & 33 Vict. c. 97, 8S. I, 2, 3, 6. 52 & 53 Vict. c. 65.] (3) Unless at the time of an appointment to fill a vacancy in the Council of India nine of the then existing members of the council are persons who have served or resided in British India (b) for at least ten years, and have not last left British India more than ten years before the date of their appointment, the person appointed to fill the vacancy must be so qualified. (4) Every member of the Council of India holds office, except as by this section provided, for a term of ten years. (5) The Secretary of State may for special reasons of public advantage reappoint for a further term of five years any member of the Council of India whose term of office has expired. In any such case the reasons for the reappointment must be set forth in a minute signed by the Secretary of State and laid before both Houses of Parliament. Save as aforesaid, a member of the Council of India is not capable of reappointment. Vict. c. (6) The Secretary of State may also, if he thinks fit, [39 & 40 7.] appoint any person having professional or other peculiar qualifications to be a member of the Council of India during good behaviour. The special reasons for every such appointment must be stated in a minute signed by the Secretary of State and laid before both Houses of Parliament. Not more than three persons so appointed may be members of the council at the same time. If a member so appointed resigns his office, and has at the date of his resignation been a member of the council for more than ten years, the King may, by warrant under His Sign Manual, countersigned by the Chancellor of the Exchequer, grant to him, out of the revenues of India, a retiring pension during life of five hundred pounds (c). (7) Any member of the Council of India may, by writing signed by him, resign his office. The instrument of resignation must be recorded in the minutes of the council. (8) Any member of the Council of India may be removed by His Majesty from his office on an address of both Houses of Parliament. (9) There is paid to each member of the Council of India out of the revenues of India the annual salary of twelve hundred pounds. (a) The Council of India is, in a certain, but very limited, sense the successor of the old Court of Directors. Under the Act of 1858 it consisted of fifteen members, eight appointed by the Crown, and seven elected, in the first instance, by the Court of Directors, and Seat in council disqualification for Parliament. [21 & 22 Vict. c. subsequently by the council itself. The members of the council held office during good behaviour, but were removable on an address by both Houses of Parliament. By an Act of 1869 (32 & 33 Vict. c. 97) the right of filling all vacancies in the council was vested in the Secretary of State, and the tenure was changed from tenure during good behaviour to tenure for a term of ten years, with a power of reappoint. ment for five years, 'for special reasons.' By an Act of 1889 (52 & 53 Vict. c. 65) the Secretary of State was authorized to abstain from filling vacancies in the council until the number should be reduced to ten. (b) It will be observed that service or residence in British India (see 21 & 22 Vict. c. 106, s. 1), not in India, is the qualification. (c) This exceptional power, which was conferred by an Act of 1876 (39 & 40 Vict. c. 7), was exercised in the case of Sir H. S. Maine, and was probably conferred with special reference to his case. 4. A member of the Council of India is not capable of sitting or voting in Parliament. This restriction applies to seats in both Houses of Parliament. 5. If at any time it appears to Parliament expedient to reduce the number or otherwise to deal with the constitution 106, s. 12.] Claims to of the Council of India, a member of that council is not compensa- entitled to claim any compensation for the loss of his office, or for any alteration in the terms and conditions under which his office is held, unless he has served in his office for a period of ten years. tion. [32 & 33 Vict. c. 97, s. 7.] Duties of council. [21 & 22 Vict. c. This enactment is contained in the Act of 1869 which changed the tenure of members of council. 6. The Council of India, under the direction of the Secretary of State, and subject to the provisions embodied in this Digest, conducts the business transacted in the United 106, 8. 19.] Kingdom in relation to the government of India and the correspondence with India. Powers of council. [21 & 22 Vict. c. 106, s. 22.] 7.—(1) All powers required to be exercised by the Secretary of State in Council, and all powers of the Council of India, may be exercised at meetings of the council at which not less than five members are present. (2) The Council of India may act notwithstanding any vacancy in their number. |