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(vii) Regulating patents and copy rights.
(viii) Affecting the relations of the Government with foreign prin
ces or states.
(ƒ) The Governor-General was required to establish by proclamation a legislative council for Bengal (which he did in January 1862), and was empowered to establish similar councils for the North-West Provinces, (done in 1886) and for the Punjab (done in 1897), consisting of, in each case, the Lt. Governor and some nominated Councillors, subject to the provisions applicable to the legislatures for Madras and Bombay.
(g) The Governor-General was empowered by proclamation to constitute new provinces for legislative purposes and appoint new Lt. Governors, and to alter the boundaries of existing provinces. (Previous Consent of the Crown was necessary to give validity to any such proclamation.)
Nothing in this Act shall derogate from or interfere with the rights and powers of the Crown or the Secretary of State for india in Council; ali acts done by them shall have the same force and validity as if this Act had not been passed,
Its Importance. (1) The Act of 1861 reconstituted the Governor-General's Council. "Hitherto the Council had acted as a consultative body, every question coming before the whole board and being decided by a majority of votes. One exception had already been made by the appointment of a member of Council to deal specially with legal matters and the principle of differentiation was carried further, later on, by the appointment of two successive financial members of Council from England. (R. 390) But by the Act of 1861, which authorised the Governor-General to frame rules for the conduct of business, Lord Canning distributed the work among the members so that each of them had his own separate portfolio, and dealt, on his own initiative, with all but the most important matters". (Ibid.) The Executive Council was thus converted into a Cabinet, though the separatiou of departments in this case was less marked than in the British CabinetThe important matters and those on which differences of opinior
appeared to exist, were considered by the whole Council. This led to greater efficiency and despatch in the executive work.
(2) It removed the doubts that had for some time existed about the proper mode of legislating for the non-Regulation Provinces, in which laws had been introduced "not in accordance with the forms prescribed by the Charter Acts for legislation, but by the executive orders [See No b. of (C.) ]
(3) The power of legislation which had been taken away from the Governments of Madras and Bombay in 1833, was now restored to them. But no line of demarcation was drawn between the subjects reserved for the Central and Provincial Legislatures respectively.
(4) The Councils were expanded for legislative purposes.
(5) The principle of at least one half of the nominated members to be non-official was vindicated and established by one of the provisions of the Act. [ See (a) of B; and (b) of C.]
(6) The functions of the new Councils were expressly and and strictly limited to legislation only. They could, therefore, no longer show what at this time was considered to be an inconvenient amount of independence, by asking questions and discussing the propriety of the methods of the Executive.
The Character of the Legislature after the Act. It is summarlsed in the following exctrats from the pen of a writer (1887) who said:
(1) "That the Legislative Councils are committees for the purpose of making laws, committees by means of which the executive government obtains advice and assistance in their legislation,
(2) and the public derive the advantage of full publicity being assured at every stage of the law making process."
(3) "That it would not be wrong to in the legislative Councils in reality the
describe the laws made orders of Government".
(4) "That the Councils are not deliberative bodies with respect to any subject but that of the immediate legislation before them. They cannot inquire into grievences, call for information, or examine the conduct of the Executive. The acts of administration cannot be impugned by them".
Courts Act of 1761. existed in British India two
II. The Indian High What led to it? There parallel systems of judicial institutions of distinct origin right upto 1861:
(a) The Supreme Courts representing the Crown at the Presi→ dency towns;
(b) The Company's Courts at the Presidency towns and in the muffasil.
The former had been established by Royal Charters and the Acts of Parliament, whereas the latter were constituted by virtue of the powers derived from the Mughal Government. The following efforts had been made before 1861 for the amalgamation of these two classes of courts:
(a) The Act of 1813 empowered the Company's Courts to have jurisdiction over the Europears in suits brought against them by the natives. But they could carry the appeals to the Supreme Courts instead of to the Sadar Diwani Adalat.
(b) By the same Act the magistrates in the districts were empowered to have jurisdiction over European British subjects outside the Presidency towns. (In the latter case they were subject to the criminal jurisdiction of the Supreme Court.)
(e) By the Act of 1833 the invidious right of appeal to the Supreme Court (mentioned above) was taken away.
(d) In 1833 when the attention of Parliment was drawn the "unwieldy, confusing, and obscure state of law in British
India", it was thought proper to codify and consolidate these laws. For this purpose an Indian Law Commission was appointed in 1834. (see p. 84) Two more similar Commissions were appointed in 1853 and 1861 respectively. Their labours resulted in the preparation of several Codes of substantive law and procedure beginning with the Code of Civil Procedure (1859) and then the Code of Criminal Procedure (1861). They were supplemented by the Indian Succession Act (1865), the Hindu Wils Act (1870), the Envidence and Contract Acts (1872), etc. etc. This movement towords the uniform system of laws, which was another step towards the amalgamation of the two classes of courts, was advocated as against the system of personal law for 3
(i) The difficulty of ascertaining the native law;
(ii) Its being repugnant in some cases to the ideas of the English legal system;
(iii) The insufficiency of Indian law.
Thus the amalgamation which had long been in contemplation was carried into effect by the Indian High Courts Act of 1661.
Its Provisions. (1) The Supreme Courts and the Sadra Diwani and Nizamat Adalats were to be abolished.
(2) The Queen was empowered to established by letters patent High Courts of Judicature in Calcutta, Madras and Bombay, to which the jurisdiction and the powers of the abolished courts were to be transferred.
(3) Each of the High Court was to consist of a Chief Justice and not more than 15 judges, of whom not less than one third, including the Chief Justice, were to be barristers, and not less than one third the members of the Convented Civil Service.
(4) All the Judges were to be appointed by the Crown and were to hold office during his pleasus,
(5) The High Courts were empowered to superintend over and frame rules of practice for all the courts subject to their appellate jurisdiction.
(6) Power was given to the Queen by the Act to establish another High Court (Fourth) with the same constitution and powers. (The power was exercised in 1886 and a High Court established at Allahabad.)
Its importance.-(i) The Judges of the Crown's and Company's Courts were combined to constitute a single tribunal. (ii) But the Supreme Court survived in this sense that there came to exist a distinct branch of the High Court in its original side.
III. A few minor Acts.
(a) The act of 1835 modified a provision- [No. (f) of B. ], and empowered the Governor-General of India in legislative council to make laws for all British subjects within the native states in India, whether in the service of the Government of India or not.
(b) The act of 1889 empowered the Central Legislature to
make laws binding upon the native Iudian subjects, beyond the Indian territories of H. M.; the laws passed prior to this Act, in this respect, were also to be deemed valid.
(c) The Government of India Act of 1869 empowered the Secretary of State to fill all vacancies in the Council of India and changed the tenure of the members from a tenure during good behaviour to a term of ten years. (d) By the same Act the executive councille's in the Supreme and the Provincial Government were here: iter to be made by the King by warrant under the Royal Sign Mannual.
(e) The Act of 1870 introduced these important changes :(1) It restored the power of summary le is tion by executive order to the Governor-General for the less advanced parts of