The effect of denying the Legislative Council a separate existence was to give the Secretary of State the same complete power over Indian legislation that he unquestionably possessed over executive policy* In l864y Lawrence denied that the "Indian Councils Acty l8 6l, *** contemplate[d] that the consideration of
^ L e t t e r of 26 April l8 6l t W*P*
100Wood to Canningy 10 August l8 6l t W*P* Wood's despatch on the Act reiterated that there was to be no legislative body "distinct from the Council of the Governor-General" (Legislative despatch of 9 August 1861)* Wood reserved to himself the power to review the standing orders before they were adopted* "I mayy" he told Canningy "be able to make them more stringent than you can"
(letter of 30 August 1861, W*P*)* 101
Wood to Beadony 26 January 1662t W*P*
102
Wood to Lord £lginy 16 and 19 Mayt and 9 June 1862; Wood to Lawrencey 11 April 1864; W*P*
103
any Bill **• should be stayed by orders from home." Wood replied that "the introduction of a Bill by the Government [in India], or the course to be pursued by the Government in
respect to a Bill introduced by an additional member,*•• [was no] less an act of the Government as such than any other which they
104
may perform*" In 1854, Wood had, claimed that "India must be ruled very despotically" and that there was "no other safety for our empire there or for the security of our native subjects*" In 1 8 6 2, he wrote that "the only Govt* suitable for such a
state of things as [ existed ]•*• in India ••• [wasja despotism controlled from home*"*^ Any independence in legislation was incompatible with the home governmentvs responsibility for the security of India and for the welfare of Indians* Wood's 1.03
Gov.-Gen.in C* to S* of S*, 15 December (Legislative No* 15) 1864, Pari* Pap*(H*C*)« 1 8 7 6, lvi, pp* 17-20*
104
S* of S* to Gov*-Gen* in C*, 31 March (Legislative No* 12)
18659 ibid*, pp* 2 0-1* Wood explained to Sir Henry Maine,
the law member, that he might "address the members of the
Executive Council, and desire them to take a course as to a bill which they as a government have introduced, and *•• [that he] might desire them to oppose as a govt* a bill introduced by an outside member" (letter of 25 January 1 8 6 5, W*P*)* The bill in question concerned the revision of the Code of Civil Procedure
(see ch* 4, below)* In 1 8 7 0, the Duke of Argyll expressed a similar view of the Indian minister's right to interfere with legislation (C*H*I,« VI, p* 237)# In 1 8 8 3, Halifax advised
Ripon of the procedure that he might adopt to secure the passing of the Ilbert Bills "Override your Executive Council if necessary - if any members resign, well & good - if they do not they must support you, as a govt*, in the meetings for legislative purposes as long as they are members of the govt*" (letter of 12 April
1883, B*M*Add*MS* 43530, fols* 200-1)* 10^Wood to Elgin, 28 August, 1862*
view of the Indian minister's position vis a vis the government in India had not changed* Indeed, the appearance of racial prejudices in Bengal during i860 and l8 6l seemed to him to vindicate it* An independent legislature might, he believed, discriminate against Indians and provoke insurrection* Legis lative independence could not be given to India until that distant day when Indians themselves might be adjudged able to conduct their own affairs*
Chapter 4
Law Reform and Civil Rights
At the time of the parliamentary debates upon the Charter Bill of 1833, the confusion of laws and legal proceedings in
India had been recognized# There was a muddle of jurisdictions# The King's, or Supreme, Courts at the presidency towns, with
English lawyers on their benches, exercised complete jurisdiction over the towns of Madras, Bombay and Calcutta, and, in addition, over Europeans throughout India* Elsewhere, in the mofuasil* jurisdiction belonged to the Company's, or sadr, courts (chief of which were the courts of appeal or Sadr Adalats), for which the judges were drawn entirely from the servants of the Company* Furthermore, there was a chaos of codes and procedures# Broadly speaking, the Supreme Courts administered the Common and Statute law of England, the sadr courts codified versions of the existing Hindu and Muslim law# Partly as a result of Imperial enactments, partly through Indian Regulations - those of both the Governor- General-in-Council and the local authorities at the presidencies -
"English" law had departed from legal practice at home, and had become divergent as between the Supreme Courts* The same causes,
in addition to the existing diversities of local practice, had
1
introduced a medley of codes and procedures into the sadr courts*
l' " " ~
For the condition of the laws and legal procedures of India prior to the introduction of the Anglo-Indian Codes of 1859-61, see
G*C# Rankin, Background to Indian Law, Cambridge 1946, passim; W# Stokes (ed#), The Anglo-Indian Codes# 2 vols#, Oxford 1 8 8 7, II
PP* 381-3; E# Stokes, op# cit#, pp# 1 6 8 ff#; F# Oldfield's Chapter XXI, "Law Reform", in Camb#Hist# of India. VI, pp# 379-94, esp# PP* 379-84#
Dr* Eric Stokes has traced the influence of Benthamite theory upon those who, in the l8 3 0*s, strove to reduce the law
2
in India to coherence* He described "the need for a uniform and codified law system" as one of "the two leading ideas of the Act of l833w* A law commission was set up in India9 and
Macaulay9 the fourth or legal member of the Supreme Council9 took