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to enable Parliament to exercise this power all Indian laws were to be laid before Parliament.
Laws made under the powers given by the Act were to be subject to disallowance by the Court of Directors, acting under the Board of Control, but when made, were to have effect as Acts of Parliament, and were not to require registration or publication in any court of justice.
The laws made under the Act of 1833 were known as Acts, and took the place of the "regulations" made under previous Acts of Parliament.
The above summaries show clearly the nature and importance of the Act. The provisions by which the East India Company gave up its commercial privileges and which opened the door to English enterprise will be discussed in another volume. Those dealing with the codification of the existing law, the employment of Indians in the public services, and the patronage enjoyed by the Directors will be dealt with in subsequent chapters.
In the discussion preceding the passing of the Act many had expressed the necessity of uniformity in the matter of legislation. Hitherto, the Governor-General in Council could issue regulations which, subject to registration by the Supreme Court, were binding on Bengal; and the Governments of Madras and Bombay had similar powers for those presidencies respectively. Lord William Bentinck stated his opinion officially that there should be one legislative authority for the whole of India. Moreover, the free admission of Europeans into the country-and especially beyond the limits of the Presidency towns into the Mufassal -which was contemplated under the Act was incompatible with the old system of conflicting regulations. It seemed necessary, therefore, to unite all the functions of legislation in one central government. The Governor-General in Council therefore became the sole legislative authority in India. In their despatch explaining the provisions of the new Act the Directors dealt at great length with the spirit in which legislation should be carried out, the position and duties of the Law Member, and the necessity of consulting the subordinate Governments and public opinion generally.
Methods of Legislation
Source.-Despatch accompanying the Government of India Act, 1833. (3 & 4 Will. IV, s. 5.) Dated 10 December, 1834. From the Board of Directors, East India Company, to the Government of India. (Parliamentary Papers.)
I. In considering the alterations which have been made by the Act of last Session of Parliament in the constitution of the Indian Government, it seems to us of importance that a very full communication should take place between your Government and us, of the views we respectively entertain of the operation of the new enactments, and of the mode in which the powers entrusted to us can best be employed for fulfilling the benevolent intentions of the Legislature.
9. The Act unsealed for the first time the doors of British India to British subjects of European birth. Hitherto the English in India have been there only on sufferance. Now they have acquired a right, however qualified, to live in the country and even to become occupants of land, and there is every prospect of considerable increase of their numbers. It is therefore necessary that the local governments should have full means of dealing with them, not merely in extreme cases and by a transcendental act of authority, but in the current and ordinary exercise of its functions, and through the medium of laws carefully made and promptly and impartially administered. On no other condition could the experiment of a free ingress of Europeans be safely tried.
10. While new legislative powers are conferred on the Supreme Government, the legislative powers hitherto possessed by the Subordinate Governments are to be modified and abridged. On this topic we need hardly refer to the discussions which have of late years taken place both in India and in England on the best mode of constituting the Indian Government; the decisive consideration with the Legislature probably was the necessity of strengthening the Supreme Government in consequence of the free admission of Europeans into the interior of the country.
II. In whatever way the Europeans may disperse themselves throughout India they will be united together by a powerful sympathy, and will, in fact, maintain a constant communication. It is therefore both just and natural that they should live under the control of the same laws, nor would it be easy to legislate in reference to a part of them without keeping in view the whole body. It is especially to be recollected that the task of legislating in India for Europeans naturalised in the country and not dependent on the Government is altogether new and experimental. The difficulties of this task may have been overrated;
but undoubtedly they are not slight or evanescent; and they would be much aggravated if the different Governments were all armed with coequal and independent legislative powers, and if they were to proceed to exercise such powers at their discretion respectively, or perhaps with very different views and according to inconsistent principles. While therefore it is important, in reference to the admission of Europeans into the interior, that the Subordinate Governments, commanding as they do different regions of the Empire, should retain their executive capacities, and even that a new station of executive control and management should be added to them in the north of India, yet there seem good reasons for collecting and uniting all the functions of legislation in one central and metropolitan government.
14. The first point that occurs is the mode or process by which you are to make and to promulgate laws. Promulgation may take place in many ways, and the means of effecting it are easy of contrivance, but the process by which the law which is to be promulgated shall first be made is a matter of nicety, and to be settled with much thought and care. On this head, however, it is not necessary nor expedient to set forth the particular steps or formalities by which you are to proceed. We shall, we think, best comply with the intention of the Legislature by stating the principles which you should keep in sight in discharging the important duties in question, and which should be embodied in such rules as you may frame for the purpose.
15. The first rule is that no law, except one of an occasional kind, or arising out of some pressing emergency, should be passed without having been submitted to mature deliberation and discussion.
16. Trite as this maxim may appear, we are of opinion that it should be distinctly and very carefully acted upon in framing your rules of procedure. In this country the length and publicity of the process by which a law passes from the shape of a project into that of a complete enactment, and the conflict of opinions through which the transit must be made, constitute a security against rash or thoughtless legislation. There may, indeed, be exceptions, for there are cases in which the pressure of popular opinion forces a law prematurely into existence. To any danger of the latter kind your legislative proceedings will not, for some time at least, be exposed; but where the discussion is confined to the seclusion of a chamber, it is only the determined prudence of those who are concerned that can guard against the hazard of precipitance. We deem it of great moment, therefore, that you should by positive rules provide that every project or proposal of a law shall travel through a defined succession of stages in council before it is finally adopted; that at each stage it shall be thoroughly discussed; and that the intervals of
discussion shall be such as to allow to each member of Council adequate opportunity of reflection and inquiry. . . . For that end more minute, detailed and comprehensive rules are necessary.
18. In framing such rules provision must, of course, be made for extreme cases, and in the last resort the ultimate power specifically named by the 49th clause of the new Act to the Governor-General of acting singly and on his own responsibility will afford refuge from the possible evil of distracted counsels and infirm resolutions. But the occasions which compel the use of these extreme remedies rarely occur in well-governed states; and, in general, we are persuaded that in a punctual, constant, and even fastidious adherence to your ordinary rules of practice you will find the best security, not only for the efficiency but also for the despatch of your legislative proceedings.
19. While thus considering the deliberative part of your duties, our attention is necessarily led to one important alteration which the Act has made in the constitution of the Supreme Council; we allude to the appointment of the fourth ordinary member of Council as described in the 40th clause.
20. In the first and simplest view of this remarkable provision, the presence and assistance of the fourth councillor must be regarded as a substitute for that sanction of the Supreme Court of Judicature which has hitherto been necessary to the validity of regulations affecting the inhabitants of the presidencies, but which under the new system will no longer be required. It is, however, evident that the view of the Legislature extended beyond the mere object of providing such a substitute.
21. The concurrence of the fourth member of Council may be wanting to a law, and the law may be good still; even his absence at the time of enactment will not vitiate the law; but Parliament manifestly intended that the whole of his time and attention, and all the resources of knowledge or ability which he may possess, should be employed in promoting the due discharge of the legislative functions of the Council. He has, indeed, no pre-eminent control over the duties of this department, but he is particularly charged with them in all their ramifications. His will naturally be the principal share not only in the task of giving shape and connexion to the several laws as they pass, but also in the mighty labour in collecting all that local information, and calling into view all those general considerations which belong to each occasion, or of thus enabling the Council to embody the abstract and essential principles of good government in regulations adapted to the peculiar habits, character, and institutions of the vast and infinitely diversified people under their sway.
22. It will be observed that the fourth member is declared
not to be entitled to sit or vote in the Council except at meetings for the making of laws and regulations.
24. It should, we think, be open to every member of Council to propose any law or regulation for adoption, and his proposal should be taken into discussion, even though he should, at the outset, stand alone in his opinion. In deliberative assemblies, differently and more numerously constituted, no proposition can be entertained which is not seconded as well as moved. The reasonableness of the rule is obvious; but, in the deliberations of a small and select body, we do not think that the same condition should be expressed.
25. We shall say no more of the necessity of deliberation among yourselves. Another point, not less important, is to provide that, in the work of legislation, you shall, as far as may be practicable, avail yourself of external aid. Persons who are not members of your body may afford you valuable assistance, either by suggesting laws that are required, or by pointing out what is impassable or objectionable in the drafts or projects of laws under consideration.
26. With respect to the suggestion of new laws, the Act (by clause 66) expressly requires you to take into consideration the drafts or projects of laws or regulations which any of the Subordinate Governments may propose to you; but on this point we shall afterwards have occasion to observe more particularly. The Act also contemplates constant communications from the law commissioners, which communications are intended to furnish the grounds or the materials for legislation. Useful intimations may also be derived from the public boards, from the judges of the Supreme Courts, from all persons, whether native or European, invested with a judicial character, or holding official stations of eminence, from all colleges, and other constituted bodies, perhaps from the native heads of villages, or even private individuals of personal weight and influence.
27. Not less material is the other object to which we have adverted that of taking the opinions of the community, or of influential persons, on the projects of law under considerationan advantage which in England is secured by the publicity of the discussions in Parliament, and by the time which the passing of an Act requires, but which can be obtained in India only by making special provision for it.
30. With respect to the promulgation of laws, our chief direction to you would be to persevere in the practice which you at present pursue, as being on the whole both proper and efficient; but we must point your observation to one object for which it does not sufficiently provide. The laws are now printed in English, in the language of the courts, and in whatever is the prevalent language of the country, and copies of them are