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Ordinary

lative

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

(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.

(b) In practice, meetings of the governor-general and his council are not held within the presidencies of Madras and Bombay.

41. (1) The governor-general's council hold ordinary and legis- meetings, that is to say, meetings for executive purposes; and meetlegislative meetings, that is to say, meetings for the purpose ings of governor of making laws.

general's council.

Ordinary meetings

(2) The ordinary and extraordinary members of the governorgeneral'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.

42.-(1) The ordinary meetings of the governor-general's of council, council are held at such places in India (a) as may be appointed by the Governor-General in Council.

[3 & 4 Will. IV, c. 85, s. 48.

24 & 25 Vict. c.

67, s. 9.]

(2) At any ordinary meeting of the governor-general's council the governor-general and one ordinary member of his council may exercise all the functions of the GovernorGeneral in Council (b).

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

(b) 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.'

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.

ness of
Governor-
General
in Council.

43.-(1) All orders and other proceedings of the Governor- BusiGeneral in Council must be expressed to be made by the Governor-General in Council, and must be signed by a secretary to the Government of India, or otherwise as Governor-General in Council may direct (a).

the [33 Geo. III, c. 52,

s. 39. 53 Geo.

155, S. 79.

Vict. c.

67, s. 8.]

(2) The governor-general may make rules and orders (b) III, c. for the more convenient transaction of business in his council, 24 & 25 other than the business at legislative meetings, and every 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.

6

(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.

(b) 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.

Procedure in case of

[13 Geo. III, c. 63,

44. (1) At any ordinary meeting of the governordifference general's council, if any difference of opinion arises on any question brought before the council, the Governor-General in Council is bound by the opinion and decision of the majority of those present, and if they are equally divided the governor-general, or, in his absence, the senior member of the council present, has two votes or the casting vote.

s. 8.

3 & 4 Will. c. 85, s. 48.]

IV,

[33 Geo.

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

III, c. 52,

49.

33 & 34
Vict.
c. 3, s. 5.]

quillity, or interests of British India, or of any part thereof, are or may be, in the judgement of the governor-general, 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.'

The Charter Act of 1833 (3 & 4 Will. IV, c. 85, s. 48) enacts that ' in every case of difference of opinion at meetings of the said council where there shall be an equality of votes, the said governor-general shall have two votes or the casting vote.'

The difficulties which Warren Hastings encountered in his council under the Act of 1773 are well known, and Lord Cornwallis stipulated, on his appointment, that his hands should be strengthened; accordingly by an Act of 1786 (26 Geo. III, c. 10) the governor-general was empowered in special cases to override the majority of his council and act on his own responsibility. (See above, p. 67.)

The provisions of the Act of 1786 were re-enacted by ss. 47, 48, and 49 of the Charter Act of 1793 (33 Geo. III, c. 52), which are still in force, and which run as follows:

'47. And whereas it will tend greatly to the strength and security of the British possessions in India, and give energy, vigour, and dispatch to the measures and proceedings of the executive Government within the respective presidencies, if the Governor-General of Fort William in Bengal and the several governors of Fort Saint George and Bombay were vested with a discretionary power of acting without the concurrence of their respective councils, or forbearing to act according to their opinions, in cases of high importance, and essentially affecting the public interest and welfare, thereby subjecting themselves personally to answer to their country for so acting or forbearing to act: Be it enacted, that when and so often as any measure or question shall be proposed or agitated in the Supreme Council at Fort William in Bengal, or in either of the councils of Fort Saint George and Bombay, whereby the interests of the said united Company, or the safety or tranquillity of the British possessions in India, or in any part thereof, are or may, in the judgement of the governor-general or of the said governors respectively, be essentially concerned or affected, and the said governor-general or such governors respectively shall be of opinion that it will be expedient, either that the measures so proposed or agitated ought to be adopted or carried into execution, or that the same ought to be suspended or wholly rejected, and the several other members of such council then present shall differ in and dissent from such opinion, the said governor-general or such governor and the other members of the council shall and they are hereby directed forthwith mutually to exchange with and communicate in council to each other, in writing under their respective hands (to be recorded at large on their secret consultations), the respective grounds and reasons of their respective opinions; and if after considering the same the said governorgeneral or such governor respectively, and the other members of the said council, shall severally retain their opinions, it shall and may be lawful to and for the said governor-general in the Supreme Council of Fort William, or either of the said governors in their respective councils, to make and declare any order (to be signed and subscribed by the said governor-general or by the governor making the same) for suspending or rejecting the measure or question so proposed or agitated, in part

or in whole, or to make and declare such order and resolution for adopting and carrying the measure so proposed or agitated into execution, as the said governor-general or such governors in their respective councils shall think fit and expedient; which said last-mentioned order and resolution so made and declared shall be signed as well by the said governor-general or by the governor so making and declaring the same as by all the other members of the council then present, and shall, by force and virtue of this Act, be as effectual and valid to all intents and purposes as if all the said other members had advised the same or concurred therein; and the said members in council, and all officers civil and military, and all other persons concerned, shall be and they are hereby commanded, authorized, and enjoined to be obedient thereto, and to be aiding and assisting in their respective stations in the carrying the same into execution.

'48. And . . . that the governor-general or governor who shall declare and command any such order or resolution to be made and recorded without the assent or concurrence of any of the other members of council shall alone be held responsible for the same and the consequences thereof.

'49. Provided always . . . that nothing in this Act contained shall extend or be construed to extend to give power to the said GovernorGeneral of Fort William in Bengal, or to either of the said governors of Fort Saint George and Bombay respectively, to make or carry into execution any order or resolution which could not have been lawfully made and executed with the concurrence of the councils of the respective Governments or presidencies, anything herein contained to the contrary notwithstanding.'

The Government of India Act, 1870 (33 & 34 Vict. c. 3, s. 5), enacts that 'Whenever any measure shall be proposed before the GovernorGeneral of India in Council, whereby the safety, tranquillity, or interests of the British possessions in India, or any part thereof, are or may be, in the judgement of the said governor-general, essentially affected, and he shall be of opinion either that the measure proposed might be adopted and carried into execution, or that it ought to be suspended or rejected, and the majority in council then present shall dissent from such opinion, the governor-general may, on his own authority and responsibility, suspend or reject the measure in part or in whole, or adopt and carry it into execution; but in every such case two members of the dissentient majority may require that the said suspension, rejection, or adoption, as well as the fact of their dissent, shall be notified to the Secretary of State for India; and such notification shall be accompanied by copies of the minutes (if any) which the members of the council shall have recorded on the subject.'

This enactment practically supersedes, but does not expressly repeal, the enactments in the Act of 1793, but does not apply to the Governments of Madras and Bombay. It was under the enactment of 1870 that Lord Lytton acted in March, 1879, when he exempted certain imported cotton goods from customs duty.

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