Constitutional Lawand

History of Government of IndiaGovernment of India Act, 1935and the Constitution of India

'An Important document for understanding the Legal Background ofthe Constitution of India. A critical survey and indepth commentaryfrom the grant of the First Charter to East India Company in the

year 1600 to Government of India Act, 1935 (full text andcommentary) with a resumé of post 1935 Historical, Legal and

Constitutional Developments and the Constitution of India.'

EIGHTH EDITION

Prof. CL. ANANDBarrister-at-Law

Former Principal, Lahore Law College

Revised by

H.K. SaharayMA. (Tripte), M.Com., LL.B., PhD. (London), Barrister-at-Law

(InivQrsqlUwPoMttbiCo.Pvt.LM.

CONTENTSPreface to Eighth Edition v

Preface to Seventh Edition viTable of Cases xxxv

INTRODUCTION• Home Government 2• Legislative Councils 3• Financial Devolution 5• Judicial Institutions 5• Local Self-Government 7• Press Laws 9• Public Civil Services 11• Native States 12• Reforms of 1919 12• Movement for further reforms 17

THE CONSTTTUTION OF 1935• Government of India Act, 1935 19• Reforms under 1909, 1919 and 1935 Acts 19• Indian Criticism of the Reforms 36• The New Constitution in Operation 50• Opposition to the FederaJ Plan 54• War and the Constitutional deadlock 60• Brinsh offer to India 64• Development after 1945 70• Constituent Assembly 71

THE GOVERNMENT OF INDIAPARTI

CONSTITUTION UNDER THE EAST INDIA COMPANYChapter I

THE PERIOD OF ROYAL CHARTERS1. Three Stages in the History of the Company 732. Early Charters 73

• Charter of 1600 73• Charter of 1609 74• Charter oi 1661 74• Charters of 1669 and 1677 75• Charters of 1683 75• Charter of 1686 75• Charters of 1726 and 1753 75• Charter of 1758 76

vii

viii Constitutional Law and the History of Government of India

3. Grant of the Diwani, 1765 764. Agitation for Parliamentary intervention 77

• Col. Burgoyne's motion for Select Committee 77• Sullivan's East India Judicature Bill 78• Resolutions in Parliament 78

Chapter II

THE PERIOD OF PARLIAMENTARY CONTROL1. Regulating Act, 1773 80

(a) lts Provisions 80(b) lts constitutional importance 82(c) lts defects 82

2. Bengal Judicature Act, 1781 843. Fox's East India Bill 854. Pitt's Act, 1784 865. Legislation of 1786 and reforms of Lord Comwallis 896. Charter Act, 1793 897. Charter Act, 1813 918. Charter Act, 1833 91

• Section 73 - Meaning of "Native Officers and Soldiers" 96• Indian Law Commission 100

9. Charter Act, 1853 1 0 °10. Government of India Act, 1854 1 0 2

11. Government of India Act, 1858, and Queen Victoria's Proclamation 102

PARTIISIXTY YEARS UNDER THE CROWN

Chapter IIIHOME GOVERNMENT

1. Dual System under Pitt's Act 1052. Government of India Act, 1858 107

(a) Council of India 107(b) Nature of Parliamentary control 112

3. Government of India Act, 1869 1134. Council of India Act, 1876 1135. Council of India Reduction Act, 1889 1146. Council of India Act, 1907 1147. India Council Bill, 1914 1148. Relations of the Secretary of State with the Government of India 115

Chapter IV

GROWTH OF COUNCILS1. Councils and Legislation before 1861 1172. Indian Councils Act, 1861 1193. Indian Councils Act, 1870 124

Contents ix

4. Indian Councils Act, 1874 1255. Indian Councils Act, 1892 1256. Indian Councils Act, 1909 1307. Government of India Act, 1912 1388. Government of India Act, 1915 139

Chapter V

FINANCIAL DEVOLUTION1. Arrangement upto 1870 1402. Main steps in the progressive decentralisation of finance 141

(a) Lord Mayo's Provincial Settlements 141(b) Advance made under the government of Lord Lytton 142(c) Resolution on Provincial Finance, 1881 143(d) Changes made by Lord Curzon's Government 144(e) Resolution on Provincial Finance, 1912 145

3. Nature of Financial control 147

Chapter VIJUDICIAL INSHTUTTONS

1. Judicial Powers of the Company Before Grant of the Diwani 1492. Company's Courts 150

(a) Revenue and Civil Courts 150(b) Criminal Courts 151

3. Crown Courts 1524. Amalgamation of the two systems of Courts 1545. Some features of the administration of criminal justice 157

6. Judicial system and the Rule of Law 165

Chapter VII

LOCAL SELF-GOVERNMENT1. Local Self-Govemment Bodies in Pre-British Times 1692. Attempts to revive and utilise indigenous vülage institutions 1713. Municipalities and Rural Boards under the East India Company 1764. Lord Mayo's Resolution on Provincial Finance 1775. Resolution of Lord Ripon's Government on local self-government policy 1786. Decentralisation Commission Report and Resolutions thereon of

the Government of India 181(i) The Report 181

(ii) Resolution on Local Self-Government, 1915 183(iii) Resolution on Local Self-Govemment, 1918 185

7. Conclusion 186

Chapter VIII

PRESS LAWS

1. Press Laws under the East India Company 1882. licensing Act, 1857 190

Constitutional Law and the History of Government of India

3. Press and Registration of Books Act, 1867 1924. Vernacular Press Act, 1878 1935. Government of India Resolution, 1907 1946. Newspaper (incitement to offence) Act, 1908 1957. Indian Press Act, 1910 197

Chapter IX

PUBLIC CIVIL SERVICES

1. Covenanted Civil Service under the Company 2052. Recruitment by competition 2053. Statutory Civil Service 2064. Public Services Commission, 1886 2085. Resolution for Simultaneous Examinations 2106. Royal Commission on Public Services, 1912 211

Chapter X

NATIVE STATES1. States in 1918 2142. Form of Government 2163. Relations with the British Government 218

Chapter XITHE GOVERNMENT OF INDIA ACT, 1858

Transfer of the Government of India to Her MajestyI. Territories under the Government of the East India Company to

be vested in Her Majesty and Powers to be exercised in Her name 226n. India to be governed by and in the Name of Her Majesty 226

UI. Secretary of State to exercise powers now exercised by theCompany or Board of Control 227

IV. FOUT Principal and Four Under Secretaries of State may sitas Members in the House of Commons 227

V. If President of Board of Control is appointed Secretary of State,his Seat in the House of Commons not to be vacated 227

VI. Salaries of One Secretary of State and his Under Secretariesto be paid out of the Revenue of India 227

Council of IndiaVH. Council of India established 227

Vul. First Members of the Council 228IX. Vacancies in the Council how to be filled up 228X. The major Part of the Council, with certain Exceptions, to be

Persons who shall have served or resided Ten Years in India 228XI. Tenure of Office of Members of the Council 228

XII. Members of Council not to sit in Parliament 229Xm. Salaries of Members of Council 229XTV. As to Retiring Pensions etc. 229

Contents xi

XV. Secretaries and Officers on the Home Establishment of Companyto form the Establishment of the Secretary of State in Council 229

XVI. As to Removal of Officers and Supply of Vacancies afterFirst Formation of Establishment 229

XVII. Compensations to Officers on Home Establishment of the Companyand of Board of Control not retained on new Establishment 230

XVm. As to Superannuation to Officers 230

Duties and Procedure of the Council

XIX. Duties of the Council 230XX. Secretary of State to divide the Council into Committees

and to regulate the Transaction of Business 231XXI. President and Vice-President 231

XXII. Meetings of the Council 231XXm. Procedure at Meetings 231XXTV. Orders, etc, to be open to the Perusal of Members of Council,

who may record their Opinions 231XXV. Secretary of State acting against Opinions of the Majority to

record his Reasons 232XXVI. Provision for Cases of Urgency 232XXVII. Orders now sent through Secret Committee may be sent by

Secretary of State without Communication with the Council 232XXVIII.As to Communication of Secret Despatches from India 232

Appointment and Patronage

XXIX. Appointments to be made by or with the Approbation of Her Majesty 232XXX. Appointments now made in India to continue to be made there 233

XXXI. Certain Sections of 16 and 17 Vict, C. 95 as to Appointment,etc. to the Civil Services repealed 233

XXXII. Secretary of State in Council to make Regulations forthe Adrnission of Candidates to the Civil Service of India 233

XXXm.Other Appointments and Admissions to Service vested inHer Majesty 234

XXXTV.Regulations to be made for admitting Persons to be examinedfor Cadetships in Engineers and Artillery 234

XXXV. Not less than One Tenth of Persons recommended forMilitary Cadetships to be selected from Sons of Personswho have served in India 234

XXXVI. Nominations for Cadetships to be made by Secretary ofState and Members of Council 234

XXXVü. Regulations as to Appointments and Admissions to Service 234XXXVm. As to Removal of Officers by Her Majesty 235

Transfer of Property

XXXIX. Real and Personal Property of the Company to vest inHer Majesty for the Purpose of the Government of India 235

XL. Powers of Sale and Purchase, and to enter into Contracts,vested in Secretary of State in Council 235

xii Constitutional Law and the History of Government of India

Revenues

XLI. Expenditure of Revenues of India subject to Control ofSecretary of State in Council 235

XLII. Dividend on the Stock of the Company, and existing and futuredebts, liabilities and expenses to be charged on Revenues of India 235

XLin. Revenue remitted to Great Britain, and Monies arising inGreat Britain, to be paid to Secretary of State in Council 236

XLFV. Cash Balance of the Company at the Bank to be transferredto the Secretary of State in Council 237

XLV. Stock account to be opened at the Bank 237XLVI. Stock standing in the name of the Company transferred 237XLVII. Power to grant Letter of Attomey for sale etc. of Stock and

Receipt of Dividends 237XLVIÜ.Provision as to Exchequer Bills, Bonds and Other Securities 237XLIX. Powers of borrowing vested in the Company transferred to

Secretary of State in Council 238L. Provisions in force relating to Forgery to extend to Bonds, etc.

issued by Secretary of State in Council 238LI. Present System of issuing Warrants for Payments to be continued 238

LÜ. As to the Audit of Accounts in Great Britain 238LDJ. Accounts to be annually laid before Parliament 239LIV. When Order to commence Hostilities is sent to India, the Fact to be

communicated to Parliament 239LV. Except for repelling Invasion, the Revenues of India not applicable

for any Military Operation beyond the Frontiers 240

Existing Establishments

LVI. Indian Military and Naval Forces to remain under existingConditions of Service 240

LVII. Provisions for Persons hereafter entering Her Majesty's Indian Forces 240LVIII. Officers, etc. in Employment of the Company at the Commencement

of this Act to be deemed to hold Offices under Her Majesty 240LIX. All Orders of the Court of Directors of Board of Control given

before the Commencement of this Act to remain in force 241LX. Cesser of Appointments and Functions of Directors etc. 241

LXI. Board of Control abolished 2 4 1

LXII. Records etc. of the Company to be delivered into the Care ofSecretary of State in Council 241

LXHI. A Person succeeding to the Office of Governor-General mayexercise his Powers before he takes his Seat in Council 241

Continuance of Existing EnactmentsLXW. Existing Provisions to be applicable to Secretary of

State in Council, etc. 242

Actions and ContractsLXV. Secretary of State in Council may sue and be sued 242

Contents xiii

LXVI. Secretary of State in Council to come in place of the Companywith regard to pending suits etc. 242

LXVII. Treaties to be binding on Her Majesty and Contracts etc. ofCompany may be enforced etc. 243

LXVIII. Members of Council not personally liable 243LXIX. The Directors elected by General Court of Company,

alone to be Directors of the Company 243LXX. Quarterly Courts need not be summoned 243

LXXI. Company not to be liable in respect of any claims arising out ofany Covenant etc. made before the passing of this Act 243

Saving of Certain Rights of the Company

LXXII. As to payment of expenses of the Company in respect oftheir Capital Stock and Dividend 244

LXXni. Saving of the Rights of the Company in respect of theirDividend and Security Fund 244

Commencement of the ActLXXTV. Commencement of Act 244LXXV. Provision as to proceedings in India before the Act

is proclaimed there 244

Chapter XII

THE GOVERNMENT OF INDIA ACT, 1915-19

PREAMBLE245

PARTIHOME GOVERNMENT

The Crown1. Government of India by the Crown

The Secretary of State2. The Secretary of State

The Council of India3. The Council of India

4. Seat in Council disqualification for Parliament Duties of Council5.

6. Powers of Council7. President and Vice-President of Council8. Meetings of Council9. Procedure at meetings

10. Committees of Council and business

Orders and Communications11. Correspondence between Secretary of State and India12.

13.

246

246

246248248248248248248249

249249249

xiv Constitutional Law and the History of Government of India

14. 24915. Communication to Parliament as to orders for commencing hostilities 24916. Correspondence by Govemor-General with Secretary of State 249

Establishment of Secretary of State17. Establishment of Secretary of State 24918. Pensions and gratuities 250

Military Appointments19. Military Appointments 250

Relaxation of Control of Secretary of State

19A. Relaxation of control of Secretary of State 250PARTÜ

THE REVENUES OF INDIA20. Application of revenues 25121. Control of Secretary of State over expenditure of revenues 25122. Application of revenues to military operations beyond the frontier 25223. Accounts of Secretary of State with Bank 25224. Power of attorney for sale or purchase of stock and receipt of dividends 25325. Provision as to securities 25326. Accounts to be annually laid before Parliament 25327. Audit of Indian accounts in United Kingdom 254

PARTDIPROPERTY, CONTRACTS AND LIABILITIES

28. Power of Secretary of State to sell, mortgage and buy property 25529. Contracts of Secretary of State 255

29A. Hieh Commissioner for India "°956

30. Power to execute assurances, etc, in India * "957

31. Power to dispose of escheated property, etc.32. Rights and liabilities of Secretary of State in Council 257

PART IVTHE GOVERNOR-GENERAL IN COUNCIL

General Powers and Duties of Governor-General-in-Council258

33. Powers of control of Governor-General-in-CouncilThe Govemor-General

34. The Govemor-General ^The Govemor-General's Executive Council

25835. Constitution of Govemor-General's executive council36. 2 »

25937. Rank and precedence of Commander-in-Chief

95938. Vice-President of Council meetings

25939. ^40. Business of Governor-General-in-Council

Contents xv

41. Procedure in case of difference of opinion 25942. Provision for absence of Govemor-General from meetings of Council 26043. Powers of Govemor-General in absence from Council 260

43A. Appointment of Council secretaries 261

War and Treaties44. Restriction on Power of Governor-General-in-Council to

make war or treaty 261

PART V

LOCAL GOVERNMENTSGeneral

45. Relation of local governments to Governor-General-in-Council 26145A. Classification of central and provincial subjects 262

Governorships46. Local government in Governors' provinces 26347. Members of govemors' executive councils 26348. Vice-President of council 26449. Business of Governor-in-Council and governor with ministers 26450. Procedure in case of difference of opinion in executive council 26451. Provision for absence of govemor from meetings of council 26552. Appointment of ministers and council secretaries 265

52A. Constitution of new provinces, etc, and provision as to backward tracts 26652B. Saving 266

Ueutenant-Governorships and other Provinces53. Lieutenant-Govemorships 26754. Appointment etc, of lieutenant-govemors 26755. Power to create executive councils for lieutenant-govemors 26756. Vice-president of lieutenant-Governor's council 26857. Business of lieutenant-Govemor-in-Council 26858. Chief commissioners 26859. Power to place territory under authority of Govemor-General-in-Council 268

Boundaries

60. Power to declare and alter boundaries of provinces 26861. Saving as to laws 26862. Power to extend boundaries of presidency towns 269

PART VI

INDIAN LEGISLATION

The Indian Legislature

63. Indian legislature 26963A. Council of State 26963B. Legislative Assembly 26963C President of Legislative Assembly 27063D. Duration and session of Legislative Assembly and Council of State 270

vi Constitutional Law and the History of Government of India

63E. Membership of both chambers 271

64. Supplementary provisions as to composition of LegislativeAssembly and Council of State 271

65. Power of Indian legislature 27266. Laws for the Royal Indian Marine Service 27367. Business and proceedings in Indian legislature 273

67A. Indian budget 27467B. Provision for case of failure to pass legislation 275

68. Assent of Govemor-General to Bills 27669. Powers of Crown to disallow Acts 27770. Rules for conduct of legislative business 277

Regulations and Ordinances71. Power to make regulations 277

72. Power to make ordinances in case of emergency 278

Local Legislatures

(a) Governors' Provinces72A. Composition of Governors' legislative councils 27872B. Sessions and duration of Governors' legislative councils 27972C. Presidents of Governors' legislative councils 28072D. Business and procedure in Governors' legislative councils 28072E. Provision for case of failure to pass legislation in Governors'

legislative councils

(b) Lieutenant-Governors' and Chief Commissioners' Provinces73. Legislative councils of lieutenant-govemors and chief commissioners 28374. Constitution of legislative councils in Bengal, Madras and Bombay 28375. Meetings of legislative councils of Bengal, Madras and Bombay76. Constitution of legislative councils of Lieutenant-Governors and Chief

Commissioners77. Power to constitute local legislatures in lieutenant-govemors and chief

commissioners' provinces78. Meetings of legislative councils of Lieutenant-Governors and Chief

Commissioners985

79. Powers of local legislatures80. Business at meetings of councils of Lieutenant-Governors and Chief

Commissioners(c) General

80A. Power of local legislatures80B. Vacation of seats in local legislative council80C. Financial proposals

81. Assent to Bills988

81A. Return and reservation of Bills82. Power of Crown to disallow Acts of local legislatures83. Rules for conduct of legislative business

Contents xvii

Validity of Indian Laws84. Removal of doubts as to validity of certain Indian laws 289

PART VIASTATUTORY COMMISSION

84A. Statutory commission 290

PART VIISALARIES, LEAVE OF ABSENCE, VACATION OF OFFICE,

APPOINTMENTS, ETC85. Salaries and allowances of Governor-General and certain

other officials in India 29186. Leave of absence to members of executive councils 29187. Provisions as to absence from India 29288. Conditional appointments 29289. Power for Governor-General to exercise powers before taking seat 29290. Temporary vacancy in office of Govemor-General 29391. Temporary vacancy in office of Govemor 29492. Temporary vacancy in office of member of an executive council 29493. Vacancies in legislative councils 29594. Leave 29595. Power to make rules as to Indian military appointments 29696. No disabilities in respect of religion, colour or place of birth 296

96A. Qualification or rulers and subjects of certain states for office 296

PART VIIATHE CTVIL SERVICES IN INDIA

96B. The civil services in India 29696C. Public service commission 29796D. Financial control 29896E. Rules under Part VHA 298

PART VfflTHE INDIAN CTVIL SERVICE

97. Rules for admission to the Indian Civil Service 29898. Offices reserved to the Indian Civil Service 29999. Power to appoint certain persons to reserved offices 299

100. Power to make provisional appointments in certain cases 299PART IX

THE INDIAN HIGH COURTS

Constitution

101. Constitution of High Courts 300102. Tenure of office of judges of High Courts 301103. Precedence of judges of High Courts 301104. Salaries, etc, of judges of High Courts 301105. Provision for vacancy in the office of chief justice or other judge 301

xviii Constitutional Law and the History of Government of India

jurisdiction106. Jurisdiction of High Courts 302107. Powers of High Court with respect to subordinate courts 302108. Exercise of jurisdiction by single judges or division courts 303109. Power for Governor-General-in-Council to alter local limits

of jurisdiction of High Courts 303110. Exemption from jurisdiction of High Courts 303111. Written order by Governor-General justification for act in

any court in India 304Law to be administered

112. Law to be administered in cases of inheritance and succession 304

Additional High Courts113. Power to establish additional High Courts 304

Advocate-General114. Appointment and powers of advocate-general 304

PARTXECCLESIASTICAL ESTABLISHMENT

115. Jurisdiction of Indian bishops116. Power to admit to holy orders117. Consecration of person resident in India appointed to bishopric118. Salaries and allowances of bishops and archdeacons119. Payments to representatives of bishops120. Pensions to bishops121. Furlough rules122. Establishment of chaplains of Church of Scotland123. Saving as to grants to Christians

PART XIOFFENCES, PROCEDURE AND PENALTIES

124. Certain acts to be misdemeanours125. Loans to princes or chiefs126. Carrying on dangerous correspondence127. Prosecution of offences in England128. Limitation for prosecutions in British India129. Penalties

PARTXHSUPPLEMENTAL

129A. Provisions as to rules130. Repeal

Savings131. Saving as to certain rights and powers132. Treaties, contracts and liabilities of East India Company133. Orders of East India Company

Contents xix

134. Definitions 312135. Short title 312

FIRST SCHEDULE.—Number of Members of Legislative Councils 313SECOND SCHEDULE.—Official Salaries, etc. 313THIRD SCHEDULE.—Offices reserved to the Indian Civil Service 314FOURTH SCHEDULE.—Acts Repealed 314FIFTH SCHEDULE.—Provisions of this Act which may berepealed or altered by the Indian legislature 317

PART inGROWTH OF RESPONSIBLE GOVERNMENT

Chapter XIII

REFORMS OF 1919• Failure of Minto-Morley Councils• Announcement of August 20th, 1917• Joint Report on Constitutional Reforms

(a) Leading formulae(b) Reform Proposals

• The Government of India Act, 19191. Preamble2. Provincial Govemments

• "Govemor's Provinces"• Central and Provincial Subjects• Dyarchy• Executive Council• Ministers• Council Secretaries• Proposed Working of Dyarchy• Instructions to Governors• Provincial Finance and Budget

(i) Allocation of revenues(ü) Expenditure of revenues and proposals for taxation

and borrowing(iii) Finance Department(iv) Loans(v) Scheduled taxes

(vi) Budget(vü) Public Accounts and Finance Committees

(viii) Provincial Revenue and Expenditure• Control of the Govemor-General in Council and of the

Secretary of State over Local Govemments• Provincial Legislature

(a) Composition

318320321321321326326327327328329331331333333335336336

337338339340341342342

342343343

xx Constitutional Law and the History of Government of India

(b) Constituencies a n d franchise 344(c) Durat ion 346

(d) President a n d Depu ty President 347(e) Business and Procedure at meetings 347

(f) Legislative Powers 348• Governor 's power s in respect of legislation and budget 349

3. Government of India 351

• Indian Legislature 351(i) Compos i t ion 351

(ü) President a n d Deputy President 352(iii) Durat ion 352(iv) Constituencies and franchise 353(v) Business and Procedure at the meetings 355

• Indian Budget 356• Powers of the Governor-General in respect of legislation 357• Executive Council and Council Secretaries 357

4. H o m e Government 359• Political charges of India Office 359• Council of India 359• High Commissioner for India 359• Relaxation of India Office control 360

5. Civil Services m

6. Statutory Commission 3647. Rules unde r the Act ^

Chapter XII

WORKING OF THE REFORMS

1. First general elections °°

2. Central Legislature x'3. Provincial Councils 378

4. Woman suffrage °'

5. Native States *"6. Demand for further advance7. Proposed Schemes of Reforms °^

THE GOVERNMENT OF INDIA ACT, 1935PARTI

INTRODUCTORY1. Short title 393

2. Government of India by the Crown3. The Governor-General of India and His Majesty's

Representative as regards relations with Indian States4. The Commander-in-Chief in India

Contents xxi

PART II

THE FEDERATION OF INDIA

CHAPTER I

ESTABLISHMENT OF FEDERATION ANDACCESSION OF INDIAN STATES

5. Proclamation of Federation of India 4216. Accession of Indian States 436

CHAPTER II

THE FEDERAL EXECUTIVE

The Governor-General7. Functions of Governor-General 4488. Extent of executive authority of the Federation 448

Administration of Federal Affairs

9. Councils of ministers 45010. Other provisions as to ministers 46211. Provisions as to defence, ecclesiastical affairs, external affairs

and the tribal areas 46312. Special responsibilities of Governor-General 47413. Provisions as to Instruments of Instructions 48314. Superintendence of Secretary of State 48615. Financial adviser to Govemor-General 48616. Advocate-General for Federation 488

17. Conduct of business of Federal Government 489

CHAPTER III

THE FEDERAL LEGISLATURE

General

18. Constitution of the Federal Legislature 49019. Sessions of the Legislature, prorogation and dissolution 49920. Right of Governor-General to address, and send messages to Chambers 49921. Right of ministers, counsellors and Advocate-General as respects

Chambers 50022. Officers of Chambers 50123. Voting in Chambers, power of Chambers to act notwithstanding

vacancies, and quorum 50224. Oath of members 50425. Vacation of seats 50426. Disqualifications of membership 50427. Penalty for sitting and voting when not qualified or when disqualified 50728. Privileges, etc, of members 50829. Salaries and allowances of members 509

Legislatixx Procedure

30. Provisions as to introduction and passing of Bills 510

xxii Constitutional Law and the History of Government of India

31. Joint sittings of both Chambers in certain cases 51032. Assent to Bills and power of Crown to disallow Act 51233. Annual Financial statement 51334. Procedure in Legislature with respect to estimates 51535. Authentication of schedule of authorised expenditure 51636. Supplementary statements of expenditure 51737. Special provisions as to financial Bills 51738. Rules of procedure 51839. English to be used in the Federal Legislature 52340. Restrictions on discussion in the Legislature 523

41. Court not to inquire into proceedings of the Legislature 524

CHAPTER IV

LEGISLATIVE POWERS OF GOVERNOR-GENERAL42. Power of Governor-General to promulgate ordinances during recess of

Legislature 525

43. Power of Governor-General to promulgate ordinance at any timewith respect to certain subjects 526

44. Power of Governor-General in certain circumstances to enact Acts 528

CHAPTER V

PROVISIONS IN CASE OF FAILURE OFCONSTTTUTIONAL MACHINERY

45. Power of Governor-General to issue Proclamations 529

PART ffl

THE GOVERNORS' PROVINCES

CHAPTER I

THE PROVINCES46. Governors' Provinces 531

47. Provisions as to Berar 533

CHAPTER II

THE PROVINCIAL EXECUTIVE

The Governor48. Appointment of Governor 53549. Executive authority of Province 535

Administration of Provincial Affairs50. Council of ministers 53751. Other provisions as to ministers 53852. Special responsibüities of Governor 53953. Provisions as to Instrument of Instructions 54354. Superintendence of Governor-General 54455. Advocate-General for Province 54556. Provisions as to police rules 54857. Provisions as to crimes of violence intended to overthrow Government 548

Contents xxiii

58. Sources of certain information not to be disclosed 55159. Conduct of business of Provincial Government 553

CHAPTER III

THE PROVINCIAL LEGISLATURE

General60. Constitution of Provincial Legislatures 55561. Composition of Chambers of Provincial Legislatures 55862. Sessions of the Legislature, prorogation and dissolution 55863. Right of Governor to address and send messages to Chambers 55964. Rights of ministers and Advocate-General as respects Chambers 55965. Officers of Chambers 55966. Voting in Chambers, power of Chambers to act notwithstanding

vacancies, and quorum 56067. Oath of members 56168. Vacation of seats 56169. Disqualifications for membership 56170. Penalty for sitting and voting when not qualified, or when disqualified 56371. Privileges, etc. of members 56372. Salaries and allowances of members 564

Legislative Procedure

73. Introduction of Bills, etc. 56474. Passing of Bills in Provinces having Legislative Councils 56475. Assent to Bills 56576. Bills reserved for consideration 56677. Power of Crown to disallow Acts 566

Procedure in Financial matters78. Annual financial statement 56679. Procedure in Legislature with respect to estimates 56780. Authentication of schedule of authorised expenditure 56881. Supplementary statements of expenditure 56882. Special provisions as to financial Bills 56983. Provisions with respect to certain educational grants 570

Procedure generally84. Rules of procedure 57185. English to be used in Provincial Legislatures 57386. Restrictions on discussion in the Legislature 57387. Court not to inquire into proceedings of the Legislature 574

CHAPTER WLEGISLATIVE POWERS OF GOVERNOR

88. Power of Governor to promulgate ordinances during recessof Legislature 574

89. Power of Govemor to promulgate ordinances at any time withrespect to certain subjects 576

xxiv Constitutional Law and the History of Government of India

90. Power of Governor in certain circumstances to enact Acts 579CHAPTER V

EXCLUDED AREAS AND PARTIALLYEXCLUDED AREAS

91. Excluded areas and partially excluded areas 58192. Administration of excluded areas and partially excluded areas 582

CHAPTER VIPROVISIONS IN CASE OF FAILURE OF

CONSTITUTIONAL MACHINERY93. Power of Governor to issue Prodamation 583

PART IVTHE CHIEF COMMISSIONERS' PROVINCES

94. Chief Commissioners' Provinces 58495. British Baluchistan 58596. The Andaman and Nicobar Islands 58597. Coorg 58598. Provisions as to police rules etc. and as to crimes of

violence intended to overthrow the Government 585PART V

LEGISLATIVE POWERSCHAPTER I

DISTRIBUnON OF POWERS99. Extent of Federal and Provincial laws 586

100. Subject-matter of Federal and Provincial laws 592101. Extent of power to legislate for States 599102. Power of Federal Legislature to legislate if an emergency is proclaimed 599103. Power of Federal Legislature to legislate for two or more

Provinces by consent 600104. Residual powers of legislation 601105. Application of Naval Discipline Act to Indian naval forces 602106. Provisions as to legislation for giving effect to international

agreements 603107. Inconsistency between Federal laws and Provincial or State laws 604

CHAPTER IIRESTRICnONS ON LEGISLATIVE POWERS

108. Sanction of Governor-General or Governor required for certainlegislative proposals 607

109. Requirements as to sanctions and recommendations to beregarded as matters of procedure only 615

110. Savings 615CHAPTER III

PROVISIONS WITH RESPECT TO DISCRIMINATION, ETC111. British subjects domiciled in the United Kingdom 616112. Taxation 618

Contents xxv

113. Companies incorporated in the United Kingdom 619114. Companies incorporated in India 620115. Ships and aircraft 621116. Subsidies for the encouragement of trade or industry 621117. Supplemental 623118. Power to secure reciprocal treatment by convention 623119. Professional and technical qualifications in general 624120. Medical qualifications 625121. Officers of Indian Medical Service, etc. 627

PART VI

ADMINISTRATTVE RELATIONS BETWEEN FEDERATION,PROVINCES AND STATES

General

122. Obligation of units and Federation 631123. Governor-General may require Govemors to discharge certain

functions as his agente 632124. Power of Federation to confer powers, etc. on Provinces and

States in certain cases 633125. Administration of Federal Acts in Indian States 635126. Control of Federation over Province in certain cases 637

126A. 638127. Acquisition of land for Federal purposes 639128. Duty of Ruler of a State as respects Federal subjects 639129. Broadcasting 639

Interference with Water Supplies130. Complaints as to interference with water supplies 641131. Decision of complaints 642132. Interference with water supplies of Chief Commissioner's Province 643133. Jurisdiction of Courts excluded 644134. Ruler of State may exdude application of provisions as to water supply 644

Inter-Provincial Co-operation

135. Provisions with respect to an Inter-Provincial Council 644

PART VÜ

FINANCE, PROPERTY, CONTRACTS AND SUTTS

CHAPTER I

FINANCE

Distribution of Revenues between the Federationand the Federal Units

136. Meaning of "revenues of Federation" and "revenues of Provinces" 645137. Certain succession duties, stamp duties, terminal taxes and

taxes on fares and freights 645138. Taxes on income 646

xxvi Constitutional Law and the History of Government of India

139. Corporation tax 652

140. Salt duties, excise duties and export duties 653141. Prior sanction of Governor-General required to Bills affecting

taxation in which Provinces are interested 653142. Grants from Federation to certain Provinces 654

142A. Taxes on professions, trades, callings and employments 655143. Savings 655144. Calculations of "net proceeds," etc. 656

The Crown and the States

145. Expenses of the Crown in connection with Indian States 656146. Payments from or by Indian States 657147. Remission of States' contributions 657148. Certain payments to Federated States etc, to be charged on

Federal revenues 661149. Value of privileges and immunities to be set off against

share of taxes, etc, assigned to Federated States 661

Miscellaneous Financial Provisions150. Expenditure defrayable out of Indian revenues 661151. Provisions as to the custody of public moneys 662152. Exercise by Govemor-General of certain powers with

respect to Reserve Bank 662153. 662

154. Exemption of certain public property from taxation 662154A. Exemptions from taxes on electricity 663

155. Exemption of provincial Govemments and Rulers ofFederated States in respect of Federal taxation 663

156. Adjustment in respect of certain expenses and pensions 664157. Duty of Federation and Provinces to supply Secretary of

State with funds 664158. Provisions as to relation of Burma monetary system with India 666159. Relief in respect of tax on income taxable both in India and Burma 666

160. Provisions as to customs duties on India-Burma trade 666

CHAPTER IIBORROWING AND AUDIT

Borrowing161. Cessation of borrowing by Secretary of State in Council °°162. Borrowing by Federal Government *"163. Borrowing by Provincial Govemments **164. Loans by Federal Government to Federated States ^165. Application of Colonial Stock Acts to stocks issued by Federation 668

Audit and Accounts

166. Auditor-General of India167. Provincial Auditor-General ^

Contents xxvii

168. Power of Auditor-General of India to give directions as to accounts 670169. Audit reports 670170. Auditor of Indian Home Accounts 671171. Audit of accounts relating to the discharge of the functions of

the Crown in relation to Indian States 672

CHAPTER III

PROPERTY, CONTRACTS, LIABILITIES AND SUITS172. Vesting of lands and buildings 673173. Provisions as to other property 675174. Property accruing by escheat or lapse, or as bona vacantia 676175. Power to acquire property and to make contracts, etc. 677176. Suits and proceedings 677177. Existing contracts of Secretary of State in Council 683178. Special provisions as to existing loans, guarantees and

other financial obligations 683179. Legal proceedings as to certain marters 684180. Contracts in connection with functions of Crown in its relations

with Indian States 685

PART vmTHE FEDERAL RAILWAY AUTHORITY

181. Executive authority in respect of railways to be exercisedby Federal Railway Authority 686

182. Composition, etc. of Railway Authority 687183. Directions and principles to be observed by Railway Authority 690184. Conduct of business between Railway Authority and

Federal Government 691185. Acquisition and sale of land, contracts and working agreements 691186. Finance of the Railway Authority 692187. Provisions as to certain obligations of the Railway Authority 693188. Investment of funds of Railway Authority 694189. Special provisions as to certain existing funds 694190. Audit and annual reports 694191. Railway Rates Committee 695192. Büls and amendments for regulating rates and fares to require

recommendation of Governor-General 695193. Obligation of Railway Authority and Federated States to afford

mutual traffic facilities and to avoid unfair discrimination, etc. 695194. Appeal by State to Railway Tribunal from certain directions of

Railway Authority 695195. Construction and reconstruction of railways 696196. Railway Tribunal 696197. Rights of railway companies in respect of arbitration under contracts 698198. Railways in Indian States which have not federated 698199. Official directors of Indian railway companies 698

xxviii Constitutional Law and the History of Government of India

PART IX

THE JUDICATURE

CHAPTER I

THE FEDERAL COURT200. Establishment and constitution of Federal Court 699201. Salaries, etc. of judges 700202. Temporary appointment of acting Chief Justice 701203. Seat of Federal Court 701204. Original jurisdiction of Federal Court 702

205. Appellate jurisdiction of Federal Court in appeals fromHigh Courts in British India 703

206. Power of Federal Legislature to enlarge appellate jurisdiction 708207. Appellate jurisdiction of Federal Court in appeals from

High Courts in Federated States 709208. Appeals to His Majesty in Council 710209. Form of judgment on appeal 711210. Enforcement of decrees and orders of Federal Court

and orders as to discovery, etc. 712211. Letters of request to Federated States 713

212. Law declared by Federal Court and Privy Council tobe binding on all courts 714

213. Powers of Governor-General to consult Federal Court 715214. Rules of court, etc. 720215. Ancillary powers of Federal Courts 722216. Expenses of Federal Court 722217. Construction of references to High Courts in States 723

218. Savings 724

CHAPTER II

THE H I G H C O U R T S I N BRITISH I N D I A219. Meaning of "High Court" 724220. Constitution of High Courts 724221. Salaries etc. of judge 728222. Temporary and additional Judges 729223. Jurisdiction of existing High Courts 729224. Administrative functions of High Courts 730225. Transfer of certain cases to High Court for trial 732226. Jurisdiction in revenue marters '°227. Proceedings of High Courts to be in English 73i>228. Expenses of High Courts 7 3 5

229. Power of His Majesty to constitute or reconstituteHigh Court by letters patent 7 3 6

230. Extra-provincial jurisdiction of High Courts 7 3

231. Saving and definitions

Contents xxix

PARTXTHE SERVICES OF THE CROWN IN INDIA

CHAPTER I

DEFENCE SERVICES232. Pay, etc, of Commander-in-Chief 738233. Control of His Majesty as to defence appointments 739234. Eligibility for commissions in Indian Forces 739235. Control of Secretary of State with respect to conditions of service 740236. Saving of rights of appeal 740237. Pay, etc, of members of forces to be charged on Federal revenues 740238. Provisions as to certain civilian personnel 740

239. King's India cadetships 741

CHAPTER 11CIVIL SERVICES

General Provisions

240. Tenure of office of persons employed in civil capacities in India 741241. Recruitment and conditions of service 743242. Application of preceding section to railway, customs,

postal and telegraph services, and officials of courts 745243. Special provisions as to police 746

Recruitment by Secretary of State andprovisions as to certain posts

244. Services recruited by Secretary of State 748245. Special provision as to irrigation 752246. Reserved posts 753247. Conditions of service, pensions, etc, of persons recruited

by Secretary of State 753248. Rights in respect of complaints, appeals, etc. 756249. Compensation 757

Provisions as to persons appointed by Secretary ofState in Council, persons holding reserved posts and

commissioned officers in civil employment250. Application of four last preceding sections to persons appointed

by Secretary of State in Council, and certain other persons 757

Special provisions as to staffs of the High Commissionerfor India and the Auditor of Indian Home Accounts

251. Staff of High Commissioner and Auditor of Indian Home Accounts 758252. Conditions of service of existing staff of High Commissioner

and Auditor of Indian Home Accounts 759

Special Provisions as to Judicial Officers253. Judges of the Federal Court and High Courts 759254. District judges, etc. 760

xxx Constitutional Law and the History of Government of India

255. Subordinate civil judicial service 761256. Subordinate criminal magistracy 761

Special Provisions as to Political Department

257. Officers of political department 761

Provisions for the protection of certain existing officers258. Provisions for protection of existing officers of certain Services 762259. Provisions as to certain persons serving in or before 1924 763260. General provisions as to persons retiring before

commencement of Part III 764

MISCELLANEOUS261. Secretary of State to act with concurrence of his advisers 764

262. Eligibility for office of persons who are not British subjects 764

263. Joint services and posts 766

CHAPTER III

PUBLIC SERVICE COMMISSIONS

264. Public Service Commissions 766265. Composition and staff of Commissions 767266. Functions of Public Service Commissions 769267. Power to extend functions of Public Service Commissions 771

268. Expenses of Public Service Commissions 771

CHAPTER IV

CHAPLAINS

269. Provisions as to chaplains 771

CHAPTER VGENERAL

270. Indemnity for past acts 773271. Protection of public servants against prosecution and suits 777272. Provisions as to payment of certain pensions and

exemption of those pensions from taxation in India 779273. Provisions as to family pension funds 780274. Saving for certain Funds Acts 783275. Persons not to be disqualified by sex for holding certain offices 783276. Transitional provisions 784277. Interpretation etc. 784

PART XITHE SECRETARY OF STATE, HIS ADVISERS

AND HIS DEPARTMENT278. Advisers to Secretary of State 785279. Existing accounts of Secretary of State in Council with Bank of England 787280. Organisation and expenses of India Office 787281. Transfer of existing personnel 788282. Contributions from revenues of Federation 789

Contents xxxi

283. Liability for pensions in respect of service beforecommencement of Part III 790

284. Provision as to certain Indian Office Provident Funds 791284A. 791

PART XII

MISCELLANEOUS AND GENERAL

The Crown and the Indian States

285. Saving for rights and obligations of the Crown in its relations withIndian States 791

286. Use of His Majesty's forces in connection with discharge ofthe functions of the Crown in its relations with Indian States 792

287. Arrangements for Governors and Provincial staff to assist indischarging functions of Political Department 792

Aden288. Aden 792

New Provinces and alterations of boundaries of Provinces

289. Creation of new Provinces of Sind and Orissa 793290. Creation of new Provinces and alterations of boundaries of Provinces 795

Franchise291. Powers of His Majesty to make provision with respect to franchises and

elections 795

Provisions as to certain legal matters

292. Existing law of India to continue in force 796293. Adaptation of existing Indian laws, etc. 797294. Foreign jurisdiction 797295. Provisions as to death sentences 8012%. Courts of Appeal in revenue matters 801297. Prohibition of certain restrictions on intemal trade 802298. Persons not to be subjected to disability by reason of race, religion, etc. 803299. Compulsory acquisition of land etc. 811300. Protection for certain rights, privileges and pensions 813301. Repeal of section 18 of 21 Geo. 3, ch. 70, and

section 12 of 37 Geo. 3, ch 142 816

High Commissioner

302. High Commissioner for India 816

General Provisions

303. Provisions as to Sheriff of Calcutta 817304. Persons acting as Govemor-General or Govemor 818305. Secretarial staffs of Govemor-General and Govemor 818

305A. Provisions as to pensions of have civil servants appointedto offices in India 818

306. Protection of Govemor-General, Governor, or Secretary of State 819

xxxii Constitutional Law and the History of Government of India

307. Removal of certain disqualifications on the occasion ofthe first elections to Legislature 821

308. Procedure as respects proposals for amendment of certain provisions of Actand Orders in Council 821

309. Orders in Council 827310. Power of His Majesty in Council to remove difficulties 827

Interpretation

311. Interpretation, etc. 828

PART XinTRANSinONAL PROVISIONS

312. Operation of Part Xm 843313. Executive Government 844314. Control of the Secretary of State 846315. Sterling loans 846316. Legislature 847

317. Continuance of certain provisions of Government of India Act 848318. Provisions as to Federal Court and certain other Federal authorities 849

319. Rights and liabilities of Governor-General in Council andGovemor-General to continue after establishment of Federation 849

P A R T XTV

C O M M E N C E M E N T , REPEALS, E T C320. Commencement 849

321. Repeals 85°

FIRST SCHEDULE—Composition of the federal legislature & 5 0

SECOND SCHEDULE.—Provisions or this Act which may be Amendedwithout affecting the accession of a State °°

THIRD SCHEDULE.—Provisions as to governor-general and governors ofprovinces

FOURTH SCHEDULE.—Forms of oaths or affirmations ö / 1

FIFTH SCHEDULE.—Composition Or Provincial Legislature 872

SIXTH SCHEDULE.—Provisions As To Franchise 878

SEVENTH SCHEDULE.—Legislative l i s t s 9 l 7

EIGHTH SCHEDULE.—The Federal Railway Authority 926

NINTH SCHEDULE.—Provisions of government of India act continuedin force with amendments until the establishmentof the federation

TENTH SCHEDULE.—Enactments repealed 94°

RELEVANT DOCUMENTSI.— list of orders in Council issued under the Government of

India Act, 1935 9

II.— Letters Patent passed under the great seal of the Realm constitutingthe office of Governor-General of India

Contents xxxiii

III.— Letters patent passed under the great seal of the Realm constitutingthe Office of the Crown Representative 946

IV.— Commission passed under the Royal Sign Manual and Signetappointing The Most Honourable' the Marquess of LinlithgowK.T, G.M.S.I, G.M.I.E., O.B.E., to be Govemor-General of Indiaand Crown's Representative 948

V.— Instructions passed under the Royal Sign Manual and Signet tothe Govemor-General of India 949

VI.— Draft Instrument of Instructions to the Govemor-General 952Vu.— Instrument of Instructions to the Govemor 958

Vul.— The Government of India (Amendment) Act, 1939 962IX.— India and Burma (Miscellaneous Amendments) Act, 1940 963X.— The India and Burma (Emergency Provisions) Act, 1940 972

XI.— The India (Federal Court Judges) Act, 1942 974XII.— The India and Burma (Temporary and Miscellaneous Provisions)

Act, 1942 975XHL— Dates on which provisions of the Government of India Act, 1935,

came into force 977XTV.— The Indian Independence Act, 1947 979XV.— The Constitution of India 993

XVI.— The Constitution (Application to Jammu and Kashmir) Order, 1954 1179XVII.— Re-Statement, with reference to the present text of the Constitution,

of the exceptions and modifications subject to which the constitutionapplies to the state of Jammu and Kashmir 1190

XVni— Amendments to the Constitution of India 1202

Subject Index 1319