CHAPTER II

THE EXECUTIVE AND LEGISLATIVE AUTHORITIES

THE CHARTER ACT OF 1833

THE new principles underlying the nature and objects of British rule in India, which involved an abstention from interference in the natural development of the people on the one hand and a burning desire to eradicate all that was harmful and inhuman on the other, were reflected in the attitude of the British Parliament towards India as well as in the actions of the great rulers to whom reference has been made in the last chapter. It was a time when in England men were beginning to think of the individual life and the individual soul, and to realise that the progress of the nation depended very largely on the improvement of the individual. A spirit of reform was abroad in every direction. And so it came about that the political leaders in 'England began to realise the extent of their responsibilities towards the millions of India's inhabitants who had been committed to their charge. The age of conquest had come to an end for a time; the age of reconstruction had begun. And not only was that work of reconstruction characterised by a keen sense of responsibility and a distinct nobility of purpose, but also by the utmost care and deliberation. Action was preceded by consultation. A Select Committee of the House of Commons was appointed in 1832 to inquire into "the present state of the affairs of the East India Company" and to issue recommendations in regard to future policy. The evidence submitted before that Committee, from which several extracts are given below, points not only to the thoroughness with which the work was carried out, but also to the fact that a high sense of duty and responsibility was felt not merely by a few men of advanced opinions but also

by the majority of the Company's servants. The attitude of the Committee itself towards the problems of Indian Government can be gauged from the following extract :—

Ideals of Indian Government

Source.-Report of the Select Committee.

On a large view of the state of Indian legislation, and of the improvement of which it is susceptible, it is recognised as an indisputable principle that the interests of the native subjects are to be consulted in preference to those of Europeans, whenever the two come in competition; and that therefore the laws ought to be adapted rather to the feelings and habits of the natives than to those of Europeans. It is also asserted that, though the native law might beneficially be assimilated to British law in certain points, yet the principle of British law could never be made the basis of an Indian code; and finally, that the rights of the natives can never be effectually secured otherwise than by such amalgamation; by the appointment of a European judge to every Zillah court, with native judges as his assistants and assessors; and by the substitution of individual for collective agency.

Immediately connected with every plan for the good government of India, and for the introduction of ameliorating changes with the present system, is all that relates to the habits, character, and capacity of the native population. It appears that at present they are only employed in subordinate stations in the Revenue, Judicial, and Military Departments. They are said to be sufficiently observant of the practical merits and defects of our system; and to be alive to the grievance of being excluded from a larger share in the Executive Government, a disadvantage which is not considered as compensated by the increased security enjoyed under British protection, compared with the precariousness of all tenure under former Governments: it is amply borne out by the evidence that such exclusion is not warranted on the score of incapacity for business, or the want of application, or trustworthiness; while it is contended that their admission, under European control, into the higher offices would have a beneficial effect in correcting the moral obliquities of their general character; would strengthen their attachment to British dominion; would conduce to the better administration of justice; and would be productive of a great saving in the expenses of the Indian Government.

After deliberation the British Parliament proceeded to action, and action of a most important kind. The Charter

Act of 1833 marks a most important stage in the history of British administration in India. The Act itself is too lengthy for reproduction and therefore a summary of its more important provisions, prepared by Sir Courtenay Ilbert, has been substituted.

After the Act had been passed, the Directors sent out to India a famous despatch which is supposed to have been the work of James Mill and in which they expounded with remarkable lucidity the means by which, and the manner in which, the provisions should be carried out.

Summary of the Provisions of the Charter Act of 1833 Source.-Historical Introduction, Government of India."

Courtenay Ilbert. (Clarendon Press.)

Sir

When the time came round again for renewing the Company's charter, Lord William Bentinck's peaceful régime had lasted for five years in India; the Reform Act had just been carried in England, and Whig principles were in the ascendant. Bentham's views on legislation and codification were exercising much influence on the minds of law reformers. Macaulay was in Parliament, and was Secretary to the Board of Control, and James Mill, Bentham's disciple, was the examiner of Indian correspondence at the India House. The Charter Act of 1833, like that of 1813, was preceded by careful inquiries into the administration of India. It introduced important changes into the constitution of the East India Company and the system of Indian administration.

The territorial possessions of the Company were allowed to remain under their government for another term of twenty years; but were to be held by the Company "in trust for His Majesty, his heirs and successors, for the service of the Government of India."

The Company's monopoly of the China trade and the tea trade was finally taken away.

The Company was required to close up their commercial business and to wind up their affairs with all convenient speed. Their territorial and other debts were charged on the revenues of India, and they were to receive out of those revenues an annual dividend at the rate of £10 10s. per cent on the whole amount of their capital stock (i.e. £630,000 a year), but this dividend was to be subject to redemption by Parliament on payment of £200 sterling for every £100 stock, and for the purpose of this redemption a sum of £2,000,000 was to be paid

by the Company to the National Debt commissioners, and accumulated with compound interest until it reached a sum of £12,000,000.

The Company while deprived of their commercial functions retained their administrative and political powers under the system of double government instituted by previous Acts, and in particular continued to exercise their rights of patronage over Indian appointments. The constitution of the Board of Control was modified, but as the powers of the Board were executed by its president, the modifications had no practical effect. The Act re-enacted provisions of the former Act as to the "Secret Committee" of the Court of Directors, and the despatches to be sent through that committee, and it simplified the formal title of the Company by authorising it to be called the East India Company.

No very material alteration was made in the system by which the executive government was to be carried on in India.

The superintendence, direction, and control of the whole civil and military government were expressly vested in a governor-general and councillors who were to be styled "the Governor-General of India in Council." This Council was increased by the addition of a fourth ordinary member, who was not to be one of the Company's servants and was not to be entitled to act as member of Council except for legislative purposes. It need hardly be stated that the fourth member was Macaulay.

The overgrown Presidency of Bengal was to be divided into two distinct presidencies, called the Presidency of Fort William and the Presidency of Agra. But this provision never came into operation. It was suspended by an enactment of 1835 (5 & 6 Will. IV, c. 52), and the suspension was continued indefinitely by the Charter Act of 1853 (16 & 17 Vict., c. 95, s. 15).

The intention was that each of the four presidencies, Fort William, Fort St. George, Bombay, and Agra, should have for executive purposes a governor and council of its own. But the Governor-General and his Council were to be, for the present, the Governor and Council of Fort William, and power was given to reduce the members of the Council or even suspend them altogether and vest the executive control in a governor alone.

"In 1833," says Mr. Cowell, the attention of Parliament was directed to three leading vices in the process of Indian government. The first was in the nature of the laws and regulations; the second was in the ill-defined authority and power from which these various laws and regulations emanated;

and the third was the anomalous and sometimes conflicting judicatures by which the laws were administered.”

The Act of 1833 vested the legislative power of the Indian Government exclusively in the Governor-General in Council, who had been, as has been seen, reinforced by the addition of a fourth legislative member. The four Presidential Governments were merely authorised to submit to the Governor-General in Council "drafts or projects of any laws or regulations which they might think expedient," and the Governor-General in Council was required to take these drafts and projects into consideration and to communicate his resolutions thereon to the Government proposing them.

The Governor-General in Council was expressly empowered to make laws and regulations :

(a) for repealing, amending or altering any laws or regulations whatever, for the time being in force in the Indian territories;

(b) for all persons whether British or native, foreigners or others, and for all courts of justice, whether established by charter or otherwise, and the jurisdiction thereof;

(c) for all places and things whatsoever within and throughout the whole and every part of the said territories;

(d) for all servants of the Company within the dominions of princes and States in alliance with the Company; and

(e) as articles of war for the government of the native officers and soldiers in the military service of the Company, and for the administration of justice by courts martial to be holden on such officers and soldiers.

But this power was not to extend to the making of any laws and regulations

(i) which should repeal, vary, or suspend any of the provisions of the Act of 1833, or of the Acts for punishing mutiny and desertion of officers and soldiers in the service of the Crown or of the Company; or

(ii) which should affect any prerogative of the Crown or the authority of Parliament or the constitution or rights of the Company, or any part of the unwritten laws or constitutions of the United Kingdom, whereon may depend the allegiance of any person to the Crown or the sovereignty or dominion of the Crown over the Indian territories; or

(iii) without the previous sanction of the Court of Directors, which should empower any court other than a chartered court to sentence to death any of His Majesty's natural-born subjects born in Europe or their children or abolish any of the chartered

courts.

There was also an express saving of the right of Parliament to legislate for India and to repeal Indian Acts and the better