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(b) Under the Act of 1861 a local legislature could not alter an Act of the Government of India passed after the Act of 1861 came into operation. Consequently the sphere of operations of the local legislatures was often inconveniently restricted by the numerous Acts passed by the Governor-General in Council since 1861, particularly by such general Acts as the Evidence Act and the Easements Act. The provision reproduced in sub-section (2) was inserted in the Act of 1892 for the purpose of removing this inconvenience.

(c) Sir Charles Wood, when Secretary of State for India, in a dispatch dated December 1, 1862, addressed the Government of India as follows:

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Cases, no doubt, will occasionally occur when special legislation by the local Governments for offences not included in the Penal Code will be required. In these cases the general rule should be to place such offences under penalties already assigned in the Code to acts of a similar character. This mode of legislation, though an addition to, cannot be deemed an alteration of the Penal Code; but if any deviation is considered necessary, then the law requires that your previous sanction should be obtained.

'It was the intention of Her Majesty's Government that, except in local and peculiar circumstances, the Code should contain the whole body of penal legislation, and that all additions or modifications suggested by experience should from time to time be incorporated in it. And the duty of maintaining this uniformity, of course, devolves upon your Excellency in Council.

'As a general rule, for the guidance of the local councils, it would probably be expedient—and this appears also to be your own view— that all bills containing penal clauses should be submitted for your previous sanction.'

In consequence of this dispatch all Bills introduced into a local legislature and containing penal clauses are required to be sent to the Government of India for consideration as to the penal clauses.

As to what would amount to an alteration of the Penal Code, see Minutes by Sir H. S. Maine, Nos. 5 and 6.

(d) Among the Acts which a local legislature cannot 'affect' is the Indian High Courts Act, 1861 (24 & 25 Vict. c. 104), and, consequently, questions have arisen as to the validity of laws affecting the jurisdiction of the chartered high court. It has been held that the Governor of Bombay in Council has power to pass Acts limiting or regulating the jurisdiction of the courts established by the local legislature, and that such Acts are not void merely because their indirect effect may be to increase or diminish the occasions for the exercise of the appellate jurisdiction of the high court (Premshankar Raghunathji v. Government of Bombay, 8 Bom. H. C. Rep. A. C. I. 195). Also that the Bombay Legislative Council has authority to make laws regulating the rights and obligations of the subjects of the Bombay Government, but not to affect the authority of the high court in dealing with those rights and obligations (Collector of Thana v. Bhaskar Mahadev Rheth, I. L. R., 8 Bom. 264).

The power of the Governor-General in Council to affect by legislation the prerogative of the Crown is expressly recognized by statute (see below, s. 79). It may perhaps be inferred that the local legislatures do not possess this power. But see Bell v. Municipality of Madras, 25 Mad. 474.

77.—(1) At a legislative meeting of the Governor of Business Madras in Council or of the Governor of Bombay in Council, lative at legisand at a meeting of a Lieutenant-Governor in Council, no meetings. [24 & 25 business may be transacted other than the consideration of Vict. c. 67, measures introduced [or proposed to be introduced] (a) into 38, 48. the council for the purpose of enactment, or the alteration 55 & 56 of rules for the conduct of business at legislative meetings.

(2) At any such meeting no motion may be entertained other than a motion for leave to introduce a measure into the council for the purpose of enactment, or having reference to a measure introduced [or proposed to be introduced into the council for that purpose, or having reference to some rule for the conduct of business] (a).

(3) Provided that the Governors in Council of Madras and Bombay respectively, and the lieutenant-governor of any province having a local legislature, may, with the sanction

the Governor-General in Council, make rules for authorizing at any legislative meeting of their respective councils the discussion of the annual financial statement of their respective local Governments and the asking of questions, but under such conditions and restrictions as to subject or otherwise as may in the rules applicable to those councils respectively be prescribed or declared. But no member at any legislative meeting of any such council has power to submit or propose any resolution or to divide the council in respect of any such financial discussion or the answer to any question asked under the authority of this sub-section or the rules made under this sub-section (b).

(4) It is not lawful for any member of any such council to introduce, without the previous sanction of the governor or lieutenant-governor, any measure affecting the public revenues of the province or imposing any charge on those revenues.

ss. 37,

Vict. c.

14, s. 2.]

Assent to Acts of local legislatures.

(5) Rules for the conduct of business at legislative meetings of the Governor of Madras in Council, or of the Governor of Bombay in Council, or of any Lieutenant-Governor in Council, may be made and amended at legislative meetings of the council, subject to the assent of that governor or lieutenantgovernor, but any such rule may be disallowed by the GovernorGeneral in Council, and if so disallowed shall have no effect: Provided that rules made under this section with respect to the discussion of the annual financial statement and the asking of questions are not to be subject to amendment as aforesaid. (a) The words in square brackets are not in the Act of 1861, but represent the existing practice.

(b) This qualification on the restrictions imposed by the Act of 1861 was introduced by the Act of 1892.

78.-(1) When an Act has been passed by the council of a governor at a legislative meeting thereof, or by the council of a lieutenant-governor, the governor or lieutenantgovernor, whether he was or was not present in council at the passing of the Act, may declare that he assents to or withholds his assent from the Act.

(2) If the governor or lieutenant-governor withholds his assent from any such Act, the Act has no effect.

(3) If the governor or lieutenant-governor assents to any such Act he must forthwith send an authentic copy of the Act to the governor-general, and the Act has not validity until the governor-general has assented thereto, and that assent has been signified by the governor-general to the governor or lieutenant-governor, and published by the governor or lieutenant-governor.

(4) Where the governor-general withholds his assent from any such Act he must signify to the governor or lieutenantgovernor in writing his reason for so withholding his assent (a).

(5) When any such Act has been assented to by the governor-general, he must send to the Secretary of State an authentic copy thereof, and it is lawful for His Majesty to signify through the Secretary of State in Council his disallowance of any such Act.

(6) Where the disallowance of any such Act has been so signified the governor or lieutenant-governor must forthwith notify the disallowance, and thereupon the Act, as from the date of the notification, becomes void accordingly.

(a) Assent has been withheld on one or more of the following grounds :

(1) that the principle or policy of the Act, or of some particular provision of the Act, is unsound;

(2) that the Act, or some provision of the Act, is ultra vires of the local legislature ;

(3) that the Act is defective in form.

With respect to (3) the recent practice of the Government of India has, it is believed, been to avoid as much as possible criticism of the drafting of local Bills or Acts.

Validity of Indian Laws.

of doubts as to

certain

79. A law made by any authority in India is not invalid Removal solely on account of any one or more of the following reasons:(a) in the case of a law made by the Governor-General in validity of Council, because it affects the prerogative of the Crown (a): laws. (b) in the case of any law, because the requisite proportion Vict. c. of members not holding office under the Crown in India 67, s. 14, was not complete at the date of its introduction to the 34 & 35 Council or its enactment :

(c) in the case of a law made by a local legislature, because

it confers on magistrates, being justices of the peace, the
same jurisdiction over European British subjects as that.
legislature by Acts duly made could lawfully confer on
magistrates in the exercise of authority over natives in
the like cases (b).

(a) This saving does not appear to apply to the local legislatures. See note (c) on s. 76. As to the prerogatives of the Crown, see note (a) on s. 36. (b) An Indian Act (XXII of 1870) was passed to confirm certain previous Acts of the Madras and Bombay legislatures which had been adjudged invalid on the ground of interference with the rights of European British subjects. See R. v. Reay, 7 Bom. Cr. 6, and the speeches of Mr. FitzJames Stephen in the Legislative Council in 1870, Proceedings, pp. 362, 384. As Indian legislation could not confer on local legislatures the requisite power in the future, it was conferred by an Act of Parliament in 1871 (34 & 35 Vict. c. 34).

[24 & 25

24, 33, 48.

Vict. c. 34, s. 1.]

Salaries

and allowances of

and cer

PART VII.

SALARIES, LEAVE OF ABSENCE, VACATION OF OFFICE,
TEMPORARY APPOINTMENTS, ETC.

80. (1) There are to be paid to the Governor-General of India and to the other persons mentioned in the First Schedule governor to this Digest, out of the revenues of India, such salaries, not general exceeding in any case the maximum specified in that behalf in the said schedule, and such allowances (if any) for equipment and voyage, as the Secretary of State in Council may by order fix in that behalf, and subject to or in default of any such order, as are now payable.

tain other

officials in

India. [33 Geo. III, c.

52, s. 32. 3 & 4 Will. IV,

c. 85, ss. 76, 77. 16 & 17 Vict. c. 95, 8. 35. 24 & 25 Vict. c. 67, s. 4.

43 Vict. c. 3, ss. 2, 4.]

(2) Provided as follows:-
:-

(a) An order affecting salaries of members of the GovernorGeneral's council may not be made without the concurrence of a majority of votes at a meeting of the Council of India;

(b) If any person to whom this section applies holds or enjoys any pension or salary, or any office of profit under the Crown or under any public office, his salary under this section must be reduced by the amount of the pension, salary, or profits of office so held or enjoyed by him ;

(c) Nothing in the provisions of this section with respect to allowances authorizes the imposition of any additional charge on the revenues of India.

(3) The salary payable to a person under this section commences on his taking upon himself the execution of the office to which the salary is attached, and is to be the whole profit or advantage which he enjoys during his continuance in the office (a).

(a) The salaries of the governor-general, governors, and members of council were fixed at what is shown as the maximum in the First Schedule by 3 & 4 Will. IV, c. 85, s. 76; but were there declared to be subject to such reduction as the Court of Directors, with the sanction of the Board of Control, might at any time think fit.

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