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The Indian Councils Act. 395
(iii.) the now recognised duties and responsibilities of Colonial Governors in the different classes of Colonies, as representing and, to some extent, personating the Crown.
(i.) By the 'Indian Councils Act, 1861' (24 and 25 Vict. cap. 67) the general legislative powers conceded by previous Statutes were confirmed for the GovernorGeneral and his somewhat modified Council as constituted by that Act. The chief novel limitations were that no new laws or regulations should affect either that Act, or the Act of 1833, by which the commercial functions of the East India Company were abolished, or the 'Act for the better government of India' of 1858, by which the Government of India was transferred from the Company to the Crown. One noticeable feature of this Act is that, by the 23rd section, it gives (subject to the general restrictions on all legislation) power to the Governor-General, in cases of emergency, to make and promulgate from time to time 'ordinances for the peace 'and good government' of the territories legislated for, or of any part thereof. Every such ordinance is to have the force of law for the space of six months, unless disallowed by the Government at home, or controlled or superseded by some law or regulation made by the Governor-General in Council. The 24th section is of peculiar constitutional importance in its bearing on the relations of Parliament to the Crown. The section is as follows: 'No law or regulation made 'by the Governor-General in Council (subject to the 'power of disallowance by the Crown, as hereinbefore
* provided) shall be deemed invalid by reason only that
• it affects the Prerogative of the Crown.'
When reconstructing the Government of India in 1858, Parliament attempted to guard against the possible perils which might lurk in the large legislative powers conceded to the Governor-General in Council and to the Governor-General alone. The old Court of Directors and Board of Control were to a great extent reproduced in the 'Council of India.' This Council was to consist of fifteen persons, of whom, in the first instance, seven were to to be elected by the Court of Directors of the Company and eight were to be appointed by the Crown. Afterwards, vacancies occurring in the latter number were to be filled by the Crown, and those occurring in the former number by co-optation within the Council itself. Every member of the Council was to • hold his office during good behaviour,' and could be removed only upon an address of both Houses of Parliament. The President of the Council was to be one of Her Majesty's four Principal Secretaries of State, or a fifth Secretary (the appointment of whom was contemplated by the Act) who was to be charged with all the administrative functions previously vested in the Court of Directors or Court of Proprietors of the Company. It was only, however, in respect of the 'grant or * appropriation of any part of the revenues of India or of 'any other property coming into the possession of the 'Secretary of State in Council by virtue of that Act' that no action could be taken without a concurrence of a majority of votes at a meeting of the Council. In all other cases, if a difference of opinion arose at any meeting of the Council at which the Secretary of State was present, on any question other than that of the election of a Member of the Council, the determination of the Secretary of State was to be final. When this difference of opinion arose on a question decided at any meetIntention of the Act.
ing, the Secretary of State, or any Member of the Council present, might require his opinion and the reasons for the same to be entered in the Minutes of the proceedings. It is noticeable that, in the case of a Member, the reasons must be such as ' he may have stated at the 'meeting.' Provision is made for urgency and for the independent action of the Secretary of State, subject to the requirement that the urgent reasons for sending a communication are recorded by the Secretary of State, and notice thereof given to every Member of the Council. Despatches might also be marked 'Secret' by the authorities sending them, and they need not be communicated to the Members of the Council unless the Secretary of State should so think fit and direct.
It is obvious that, both in the Act of 1858 and in the Indian Councils Act of 1861, the policy of Parliament was to accord to the Executive Government an almost unexampled measure of despotic power to meet cases of emergency, the importance of which could only imperfectly be appreciated by unskilled persons, or by any persons at a vast distance from the scene of action. The policy was, on the other hand, to provide an equally unexampled series of checks and compensatory influences for the purpose of controlling the independent action of the Executive in all ordinary times. A double machinery of Councillors, laborious provision for freedom of deliberation and for publicity in recording the results of it, together with every imaginable security for the personal independence of the Councillors, were contrivances by which Parliament sought to recognise the undoubted Prerogative of the Crown while reconciling it with its own ultimate right of determining how British dominions should be governed.
Mr. John Stuart Mill, who had a lifetime's experience in Indian affairs, said that * the great constitu'tional security for the good government of India lies 'in the forms of business.' It may be doubted whether, in spite of the anxious care which Parliament has taken to regulate the forms of Indian business, the constitutional security sought for has really been attained. When, on the 14th of March, 1878, the Indian vernacular press was subjected, in reference to the expression of opinion, to an inquisitorial and despotic control, such as only the immediate dread of revolution could justify, and which was alien to every British institution, tradition, and principle, the Act was passed formally indeed by the Governor-General in Council, but with the determined and reasoned opposition of some of the most eminent members of that Council. The whole diplomatic change of front towards Afghanistan in 1877-78, the ultimatum addressed to Shere Ali, and the concentration of troops on the Afghan frontier, comprise a series of momentous acts which were preceded by the smallest possible amount of public deliberation either at home or in India, were stoutly opposed at every point by the most experienced members, civil and military, of the two Indian Councils; and were, in fact, almost undisguisedly perpetrated on the sole responsibility of the Secretary of State for India and the Viceroy. The same inefficiency of the existing constitutional guarantees in India was almost more glaringly manifested when, in March 1879, Lord Lytton, the Viceroy, by a mere Executive act, and against the opinion of a majority of his Council, exempted from import-duty all the inferior sorts of cotton, to the sudden and serious embarrassment of the struggling manufacturers of India, and to the Supervision of Indian Finance. 399
loss of a revenue of 200,000£. per annum. Mr. Whitley Stokes, the Legislative Member of Council, in his Minute of remonstrance, dated Calcutta, March 13, 1879, wrote of the Act of exemption, when first proposed, as follows:—' The power to exempt goods from 'Customs duties was originallj conferred by Act xvii:. 'of 1870, and was merely intended to relieve the Ex'ecutive from the useless and troublesome formality of 'coming from time to time to the Indian Legislature
* to make in the tariff petty alterations which that
* Legislature, if applied to, would have made at once. 'The change now proposed is of a very different charac'ter. I have reason to think that it would never be 'sanctioned by the Legislative Council, unless, indeed,
* arguments were brought forward in its favour far more 'cogent than those I have heard. The proposed exemp'tion of cotton goods, if made by a mere executive 'order, will thus resemble what lawyers call a fraud on 'the power; and there is unfortunately no Court of
* Equity to relieve the people of India against it.'
It was another effort on the part of Parliament to retain in its own hands a large share of the direct government of India when, by section 53 of the Act of 1858, the Secretary of State in Council was required, within the first fourteen days during which Parliament might be sitting next after the first day in May in every year, to lay before both Houses of Parliament an account of the receipts and disbursements at home and abroad on account of the Government of India, for the financial year preceding that last completed; and also estimates for the coming year, and a statement of debts, salaries, and allowances. The account was to be accompanied 'by a statement prepared from detailed reports from