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(10) Rules, laws, and regulations made by the governor
general or the Governor-General in Council for non-
8. 25 of the Indian Councils Act, 1861 1.
Native law has been wholly superseded, as to criminal law and procedure and as to civil procedure, by the Indian Penal Code, the Indian Codes of Criminal and Civil Procedure, the Evidence Act, and other enactments, and has been largely superseded as to other matters by Anglo-Indian legislation, but still regulates, as personal law, most matters relating to family law and to the law of succession and inheritance among Hindus, Mahomedans, and other natives of the country? The East India Company Act, 1793 (33 Geo. III, c. 52), The civil
service of reserved to members of the covenanted civil service 3 the India. principal civil offices in India under the rank of member of council. Appointments to this service were made in England by the Court of Directors.
The Government of India Act, 1853 (16 & 17 Vict. c. 95), threw these appointments open to competition among naturalborn subjects of Her Majesty, and this system was maintained by the Act of 1858, which transferred the government of India to the Crown 4. The first regulations for the competi
See above, p. 102. Probably most, if not all, of this body of laws has expired or been superseded.
? See below, Chapter iv.
3 So called from the covenants into which the superior servants of the East India Company were required to enter, and by which they were bound not to trade, not to receive presents, to subscribe for pensions, and so forth. Members of the civil service of India are still required to enter into similar covenants before receiving their appointments.
+ See Digest, s. 92. ;
tive examinations were framed by Lord Macaulay's committee in 1854, and have since been modified from time to time. Under the existing rules the limits of age for candidates are from twenty-one to twenty-three. Successful candidates remain on probation for one year, and then have to pass an examination in subjects specially connected with their future duties. If they pass, they receive their appointments from the Secretary of State. Probationers are encouraged by a special allowance of £100 to pass their probationary year at a University or College approved by the Secretary of State.
The Indian Civil Service Act, 1861 (24 & 25 Vict. c. 54), whilst validating certain irregular appointments which had been made in the past, expressly reserved in the future to members of the covenanted service all the more important civil posts under the rank of member of council in the regulation provinces. The schedule of reserved posts, which is still in force ?, does not apply to non-regulation provinces, such as the Punjab, Oudh, the Central Provinces, and Burma, where the higher civil posts may be, and in practice often are, filled by military officers belonging to the Indian Army, and others.
An Act of 1870 (33 Vict. c. 3), after reciting that “it is expedient that additional facilities should be given for the employment of natives of India, of proved merit and ability, in the civil service of Her Majesty in India,' authorized the appointment of any native of India to any office, place, or employment in the civil service in India, without reference to any statutory restriction, but subject to rules to be made by the Governor-General in Council with the sanction of the Secretary of State in Council 2.
Little was done under this Act until rules for regulating appointments under it were made during Lord Lytton's government in 1879. The intention was that about a sixth of the posts reserved by law to the covenanted civil service should be filled by natives of India appointed under these rules; and for the purpose of giving gradual effect to this scheme, the number of appointments made in England was in 1880 reduced by one-sixth. The persons appointed under the rules were often described as “ statutory civilians,' and about sixty natives of India had been so appointed when the system was changed in 1889. The rules did not work satisfactorily, and in 1886 a commission, under the presidency of Sir Charles Aitchison, was appointed by the Government of India with instructions to devise a scheme which might reasonably be hoped to possess the necessary elements of finality, and to do full justice to the claims of natives of India to higher employment in the public service.'
Digest, s. 93.
2 Ibid. 94.
Under the scheme established in pursuance of the recommendations of Sir Charles Aitchison’s commission a provincial civil service has been formed by the amalgamation of the higher appointments in what was previously known as the uncovenanted civil service with a certain number of appointments previously held by the covenanted civil service. The lower grade appointments of what had been the uncovenanted civil service are now styled the subordinate service.' There are thus three classes of the general civil service, (1) the Civil Service of India, (2) the Provincial Service, and (3) the Subordinate Service. The Civil Service of India is recruited by open competition in England. The other two services are recruited provincially and consist almost entirely of natives of the province. The provincial service is fed mainly by direct recruitment, but, in exceptional cases, by promotion from the subordinate service. In the executive branch the lowest grade in the provincial service is the deputy collector, the highest in the subordinate service is the tahsildar. Judicial officers of all grades belong to the provincial service 1.
Besides this general service, there are special services such as the education department, the public works department, the forest department, and the police department. Appointments to the highest posts in these departments are as a rule
1 As to the proportion of Englishmen in the Indian Civil Service, see Strachey, India, p. 82.
The chartered high courts.
made in England. The other posts are recruited provincially, and are, like posts in the general service, graded as belonging either to a provincial service, or to a subordinate service 1.
It is only with reference to the four chartered high courts that the judicial system of India is regulated by English statute. Under the Regulating Act of 1773 (13 Geo. III, c. 63), a supreme court was established by charter for Calcutta, and similar courts were established for Madras in 1800 (39 & 40 Geo. III, c. 79), and for Bombay in 1823 (4 Geo. IV, c. 71). The Act of 1781 (21 Geo. III, c. 70) recognized an appellate jurisdiction over the country courts established by the Company in the Presidency of Bengal 2.
The Indian High Courts Act, 1861 (24 & 25 Vict. c. 104), amalgamated the supreme and sadr courts at the three presidency towns (that is to say, the courts exercising the jurisdiction of the Crown and the appellate and supervisional jurisdiction of the Company at those towns), by authorizing the establishment of chartered high courts inheriting the jurisdiction of both these courts. The charters now regulating these high courts were granted in December, 1865. The same Act authorized the establishment of a new bigh court, and accordingly a charter establishing the High Court at Allahabad was granted in 1866.
Each of the four chartered high courts consists of a chief justice, and of as many judges, not exceeding fifteen, as His Majesty may think fit to appoint 3.
A judge of a chartered high court must be either-
Faculty of Advocates in Scotland, of not less than
five years' standing; or (b) a member of the civil service of India of not less than
ten years' standing, and having for at least three years served as, or exercised the powers of, a district (C) a person having held judicial office not inferior to that
judge; or 1 See East India (Progress and Condition) Decennial Report, 1904, pp. 58-60. ? See above, p. 57.
3 Digest, s. 96.
of a subordinate judge, or judge of a small cause
court, for not less than five years ; or (d) a person having been a pleader of a high court for not
less than ten years. But not less than one-third of the judges, including the chief justice, must be barristers or advocates, and not less than one-third must be members of the civil service of India!
Every judge of a chartered high court holds office during His Majesty's pleasure", and his salary, furlough, and pension are regulated by order of the Secretary of State in Council". Temporary vacancies may be filled by the Governor-General in Council in the case of the high court at Calcutta, and by the local government in other cases 4.
The jurisdiction of the chartered high courts is regulated by their charters", and includes the comprehensive jurisdiction formerly exercised by the supreme and sadr courts 6. They are also expressly invested by statute (24 & 25 Vict. c. 104, 6. 15) with administrative superintendence over the courts subject to their appellate jurisdiction, and are empowered to
(a) call for returns ; (6) direct the transfer of any suit or appeal from any such
court to any other court of equal or superior juris
diction ; (c) make general rules for regulating the practice and pro
ceedings of those courts ; (d) prescribe forms for proceedings in those courts, and for
the mode of keeping book entries or accounts by the
officers of the courts; and (e) settle tables of fees to be allowed to the sheriffs, attor
neys, clerks, and officers of the courts 7.
2 Ibid. 97.
Ibid. 100. · Digest, s. 96. s Printed in Statutory Rules and Orders Revised, vol. vi.
* Ibid. 102. • Digest, s. 101.