Upload
others
View
1
Download
0
Embed Size (px)
Citation preview
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