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Vict. c.

Vict. c.

97, 8. 8.

[21 & 22 The appointment of the governor-general is made on the advice Vict. c.

of the Prime Minister. 106, s. 29).

The governor-general usually holds office for a term of five years. As to his resignation, see below, s. 82.

The Council of the Governor-General. Constitu. 38. The council of the Governor-General of India, as contion of governor

stituted for executive purposes, consists of the ordinary memgeneral's bers, and of the extraordinary member (a) (if any) thereof (b). council.

(a) See s. 40.

(6) This section does not reproduce any specific enactment, but

represents the existing law. Ordinary

39.—(1) The ordinary members of the governor-general's members, council are appointed by His Majesty by warrant under the

. [ (21 & 22 Royal Sign Manual. 106, s. 7. (2) The number of the ordinary members of the governor24 & 25

general's council is five, or, if His Majesty thinks fit to appoint 67, s. 3.

a sixth member, six (a). 32 & 33 Vict. c.

(3) Of the ordinary members of the governor-general's 37 & 38 council, three must be persons who at the time of their Vict. c.

appointment have been for at least ten years in the service 91, s. I. 4 Edw. VII, of the Crown in India (b), and one must be a barrister of c. 26.]

England or Ireland, or a member of the Faculty of Advocates of Scotland, of not less than five years' standing (c).

(4) If any person appointed an ordinary member of the governor-general's council is at the time of his appointment in the military service of the Crown, he may not, during his continuance in office as such member, hold any military command or be employed in actual military duties.

(a) The number is at present six. The power given by 37 & 38 Vict. c. 91 to appoint a sixth member specifically for public works purposes was made a general power by 4 Edw. VII, c. 26. Under existing arrangements the business of the Government of India is distributed between nine departments-Finance, Foreign, Home, Legislative, Revenue and Agriculture, Public Works, Commerce and Industry, Army, Military Supply. Of these the Foreign Department is under the immediate superintendence of the governor-general, and the Army Department is under the commander-in-chief of His Majesty's forces in India (see s. 40 of Digest). The charge of the other departments is distri. buted between the other members of council.

The term of office of a member of council is by custom five years.

As to leave of absence, resignation, and conditional and temporary appointments, see below, ss. 81-87.

(6) The result of this restriction is that if, as occasionally happens, the member of council in charge of the military supply department (formerly the military department) is not qualified by ten years' service in India, the finance member must, practically, be taken from the Indian Civil Service.

(c) The member of council who is required to hold these qualifications is usually styled the law member. The first holder of the post was Lord Macaulay. He and his successors, down to 1853, were not members of the executive council, and his duties during this period are described by Sir Barnes Peacock in a minute of November 3, 1859, and by Sir H. S. Maine in his minute of May 5, 1866 (Minutes, No. 42). By the Act of 1853 (16 & 17 Vict. c. 95) he was placed in the same position as the other ordinary members of the governor-general's council. He is at the head of a department of his own, the Legislative Department, which was formerly a branch of the Home Department, but which was, in pursuance of Sir H. S. Maine's recommendations (see Minutes by Sir H. S. Maine, No. 84), constituted a separate department in 1869. The duties of this department, and its relation to the other branches of the Government of India, are regulated by the rules and orders for the transaction of business in the council of the governorgeneral. Practically, its functions are to prepare the drafts of all legislative measures introduced into the governor-general's council, to consider, and in some cases to settle, the form of regulations submitted under the Government of India Act, 1870 (33 Vict. c. 3), and of the rules and regulations made under powers given by Acts of the governor-general's council, to consider Bills and Acts of the local legislatures with reference to penal clauses and other special points, and to advise other departments of the Government on various legal questions. The law member of council takes charge of most of the Bills introduced into the governor-general's council, and is chairman of the select committees to which those Bills are referred. As to the general nature of his work, see the chapter on Legislation under Lord Mayo, contributed by Sir James FitzJames Stephen to Sir W. W. Hunter's Life of Lord Mayo (vol. ii. chap. viii). See also Sir H. S. Maine's Minute of 1868 on Over-legislation (Minutes, No. 204).

40.-(1) The Secretary of State in Council may, if he Extrathinks fit, appoint the commander-in-chief for the time being members

ordinary of His Majesty's forces in India an extraordinary member of coun

cil. of the governor-general's council, and in that case the com- [24 & 25 mander-in-chief has rank and precedence in the council next 67, ss. after the governor-general (a).

3, 9.) (2) When and so long as the governor-general and his council are in any province administered by a governor in

Vict. c.

council, the governor of that province is an extraordinary member of the governor-general's council (6).

(a) In practice, the commander-in-chief is always appointed an extraordinary member of council. Under regulations made in 1905 he is in charge of the army department.

(6) In practice, meetings of the governor-general and his council

are not held within the presidencies of Madras and Bombay. Ordinary 41.-(1) The governor-general's council hold ordinary and legis- meetings, that is to say, meetings for executive purposes ; and meet

legislative meetings, that is to say, meetings for the purpose ings of governor- of making laws. general's council. (2) The ordinary and extraordinary members of the governor

general's council are entitled to be present at all meetings thereof.

This section does not reproduce any specific enactment, but represents existing law and practice.

There appears to be no express enactment that the governor-general shall, when present, preside at meetings of his council, but this is

implied by such provisions as 24 & 25 Vict. c. 107, s. 7. Ordinary 42.-(1) The ordinary meetings of the governor-general's meetings of council. council are held at such places in India (a) as may be ap(3 & 4 Will. IV,

pointed by the Governor-General in Council. c. 85, s. (2) At any ordinary meeting of the governor-general's 48. 24 & 25 council the governor-general and one ordinary member of 67, s. 9.]

his council may exercise all the functions of the GovernorGeneral in Council (6).

(a) The expression used in the Act of 1861 is 'within the territories of India,' which, perhaps, means British India. In practice, the meet. ings of the council are held at Calcutta and Simla.

(6) The Act of 1793 (33 Geo. III, c. 52, s. 38) directs that 'tho Governor-General and councillors of Fort William, and the several governors and councillors of Fort Saint George and Bombay, shall at their respective council boards proceed in the first place to the consideration of such matters as shall be proposed by the governor-general or by the governors of the said presidencies respectively, and as often as any matter or question shall be propounded by any of the said councillors it shall be competent to the said governor-general or governor respectively to postpone and adjourn the discussion thereof to a future day, provided that no such adjournment shall exceed forty-eight hours, nor shall the matter or question so proposed be adjourned more than twice without the consent of the councillor who proposed the same.'

Vict. c.

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This enactment, though not specifically repealed, is practically superseded by the rules and orders made under the Indian Councils Act, 1861, and therefore is not reproduced in the Digest.

ÎII, c. 52, s. 39.

53 Geo.

43.-(1) All orders and other proceedings of the Governor- BusiGeneral in Council must be expressed to be made by the

ness of

GovernorGovernor-General in Council, and must be signed by a General

in Council. secretary to the Government of India, or otherwise as the [33 Geo. Governor-General in Council may direct (a).

(2) The governor-general may make rules and orders (6) III, c. for the more convenient transaction of business in his council,

155, s. 79.

24 & 25 other than the business at legislative meetings, and every Vict. c.

67, s. 8.] order made or act done in accordance with such rules and orders must be treated as being the order or the act of the Governor-General in Council.

(a) Under the Act of 1793 (33 Geo. III, c. 52, s. 39) the signature referred to is that of the chief secretary to the council of the presidency.'

Under the Act of 1813 (53 Geo. III, c. 155, s. 79) orders or proceedings may be signed either by the chief secretary to the Government of the said presidency, or, in the absence of such chief secretary, by the principal secretary of the department of such presidency to which such orders or proceedings relate.

Under Act II of 1834 of the Indian Legislature, each of the secretaries to the Government of India and to the Government of Fort William in Bengal is declared to be competent to perform all the duties and exercise all the powers which by any Act of Parliament or any regulation then in force were assigned to the chief secretary to the Government of Fort William in Bengal, and each of the secretaries to the Governments of Fort St. George and Bombay is declared to be competent to perform all the duties and exercise all the powers which by any such Act or regulation were assigned to the chief secretaries to the Governments of Fort St. George and Bombay respectively.

Under these circumstances this section of the Digest probably represents the form in which Parliament would re-enact the existing statutory provisions, especially as they are provisions which may be modified by Indian Acts. See 24 & 25 Vict. c. 67, s. 22.

In practice, orders and proceedings are signed by the secretary of the department to which they relate.

(6) The rules and orders made under this section appear to be treated by the Government of India as confidential, and have not been published. The most important effect of the section has been to facilitate the departmental transaction of business.

8. 8.


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Procedure 44.-(1) At any ordinary meeting of the governorin case of difference general's council, if any difference of opinion arises on any of opinion. question brought before the council, the Governor-General [13 Geo. III, c. 63, in Council is bound by the opinion and decision of the 3 & 4

majority of those present, and if they are equally divided the Will. IV,

governor-general, or, in his absence, the senior member of c. 85, 8. 48.] the council present, has two votes or the casting vote. [33 Geo.

(2) Provided that whenever any measure is proposed before SS. 47, 48, the Governor-General in Council whereby the safety, transs

quillity, or interests of British India, or of any part thereof, 33 & 34 Vict. are or may be, in the judgement of the governor-general, c. 3, s. 5.)

essentially affected, and he is of opinion either that the measure proposed ought to be adopted and carried into execution, or that it ought to be suspended or rejected, and the majority present at a meeting of the council dissent from that opinion, the governor-general may, on his own authority and responsibility, adopt, suspend, or reject the measure in whole or in part.

(3) In every such case any two members of the dissentient majority may require that the adoption, suspension, or rejection of the measure, and the fact of their dissent, be notified to the Secretary of State, and the notification must be accompanied by copies of any minutes which the members of the council have recorded on the subject.

(4) Nothing in this section empowers the governor-general to do anything which he could not lawfully have done with the concurrence of his council.

The Regulating Act of 1773 (13 Geo. III, c. 63, s. 8) provides that “in all cases whatever wherein any difference of opinion shall arise upon any question proposed in any consultation, the said governorgeneral and council shall be bound and concluded by the opinion and decision of the major part of those present. And if it shall happen that, by the death or removal, or by the absence of any of the members of the said council, such governor-general and council shall be equally divided, then, and in every such case, the said governor-general, or, in his absence, the eldest councillor present, shall have a casting vote, and his opinion shall be decisive and conclusive.'

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