For legislative purposes the Governor-General1 s Council was increased hy additional members, not less than six and not more than
twelve in number, nominated for two years, of whom not less than half were to be non-officials. The Act, however, provided that no law made by the Governor-General in Council was to be deemed invalid by reason only that
the proportion of non-official additional members was not complete at the
5
date of its introduction or enactment.
The Madras and Bombay executive councils were reinforced by addition of not less than four and not more than eight members, nominated for two years, of whom not less than half were to be non-officials. The functions of the new councils were strictly limited to the consideration and enact ment of legislative business. The Provincial Councils were not given any
1 24 & 25 Viet., c.67, s.43. 2 Ibid., s.44.
3 Leg, Des. to India, No.14, 9 Aug. 1861, para. 56* 4 See below, *4f>*
5 24 & £5 Viet., c.67, s,14.
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exclusive area for the exercise of their functions. The Act made no attempt "to demarcate the jurisdictions of the central and local legis latures as in federal constitutions. The Governor-General1s Council could legislate for the whole of India; and the Provincial Council for the whole of the province* with the reservation that “before doing so in respect of certain matters the Governor-General* s sanction had to “be
1 obtained".
Sir Charles Wood* in a covering despatch which accompanied the Act of 1861, made it clear that the rules of legislative procedure should he few and simple and that the business should be conducted in the same
2
way as in a committee or commission. The new councils were not to sit permanently for the purpose of making laws* but were to be called when projects of law we?e ready for discussion. Wood was against the making
of any rule or the use of any expression which might tend to create an impression that the meetings for legislative purposes were fixed or limited as to time* place* or duration. The use of the term 1 session* was avoided
3 lest it might imply a degree of certainty as to time and duration*;.
The Indian Councils Act of 1861 was an extremely cautious measure. All possible steps were taken to prevent the Governor-General’s Council
1 M/C Report* para. 63: Report of the Indian Statutory Commission* I. para. 132.
2 leg. Res. to India* Ho.14* 9 Aug. 1861.
3 Leg. Des. to India, Ho.25* July 1862. Wood went on to say: "Ho rule ought to be framed* and no expression ought to be used, tending to create an impression that there is a Legislative Council separate and distinct from the Executive Council. There is only the one
Council* that of the Governor-General* or of the Governors as the case may be, which sits with certain members for executive purposes* but who are aided by additional members when the Council meets for the purpose of making laws and regulations" •
94
from developing into a miniature parliament# But in providing against such a development the principle of caution was carried to such an extent that the councils were denied the opportunity of making themselves really useful todies# Consistent with the widening of their functions on a reasonable scale* it would not have teen difficult to lay down the rules to te followed by the official members of councils.
An important question connected with the growth of legislative
authority in India was the manner in which the Secretary of State exercised his power in regard to legislation. Under the Act of 1861 he was
empowered to disallow any rule made by the Governor-General in Council for 1
the conduct of legislative business* and also, any law or regulation passed 2
by the council and assented to by the Governor-General. The control of the Secretary of State was* however* not only limited to the final
rejection of a bill. He was to be informed of all that passed respecting legislative measures of any importance* and mere formal acknowledgment by him of the receipt of bills* or mere silence* involved no judgment of their contents# On first receiving a bill* the Secretary of State could intimate to the Governor-General his objections to it or suggestions for
3
additional provisions'. In 1864 Sir Charles Wood asked the Government of India to postpone the enactment of the Code of Civil Procedure* pending before the Governor-General*s Council* till further instructions# In reply to the Government of India* s observation that the Act did not contemplate
1 24 & £5 Viet.* C.67* s#18# 2 Ibid#* s#21.
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the suspension hy the Home Government of any hill regularly introduced into the Council* and not falling within the proviso contained in
Section 22, the Secretary of State said that the suspension or with drawal of a hill on the suggestion of the Secretary of State was more courteous and more calculated to maintain the dignity of the council
1 than disallowance without any intimation of his opinion*
In 1870 the Duke of Argyll, then Secretary of State, expressed the view that the Home Government must hold in its hands the ultimate power of requiring the Governor-General to introduce a measure and
2
require all the members of his government to vote for it* The occasion, which called for this ruling, was the omission hy the Select Committee on the Indian Contract Law of Section 75 from the draft. The Secretary of State was in favour of its adoption. The Government of India took the view that such a course would invest the Secretary of State with the "character of the legislator" for British India and convert the legisla-
5 ture into a mere instrument to he used hy him for that purpose.
In March 1874 Argyll’s successor, Salisbury took exception to the Government of India's practice of submitting measures, without
4