Charter Act of 1833: Analysis of the Law Making Power of Governor General

The charter act 1833 had for the first time separated the legislative functions of the Governor General in Council from the executive functions Governor General in Council from the executive functions. In effect, as Lord Macaulay viewed it, it was creation of two councils viz. Executive and Legislative, but they were without any clear indication as to the ‘partition of power’ between them. However, in view of Lord William Bentinck, the Charter Act had not altered the character of the Council. In his view, it was one and same for the executive and legislative purposes; and in that capacity, it was able to make peace and war and do all those functions which were hitherto done without requiring the interference of the same Council in its legislative capacity to give validity to its legislations. We can say that it was the embryonic stage of India’s parliamentary system, a stage where major organs and structures within the growing body were not differentiated. However, the true beginning of parliamentary system in India happened only after Charter Act of 1853.

Charter Act of 1833: Analysis of the Law Making Power of Governor General

The Charter Act of 1833 created a strong central authority in British India; it marked the culmination of the process begun in 1773 (Regulating Act). The Governor-General of Bengal became the Governor-General of India, but he continued to be Governor of Bengal. His Council was strengthened by the addition of one Member. Under Pitt’s India Act (1784) the Governor-General’s Council was composed of three ‘Ordinary Members’ and one ‘Extraordinary Member’ (the Commander-in-Chief). Under the Charter Act of 1833, the number of ‘Ordinary Members’ was raised to four, and the Commander-in-Chief remained an ‘Extraordinary Member’; it was also provided that the Governor of the Presidency of Madras or Bombay or Agra would act as an ‘Extraordinary Member’ if the Council assembled within his territorial jurisdiction.

The executive, financial and legislative powers of the Governor-General in Council were strengthened.

The Act made five important provisions in regard to lawmaking.

• Firstly, the exclusive power of making laws for the Company’s territories in India was vested in the Governor-General in Council subject to the overriding authority of Parliament and the veto of the Council of Directors.
• Secondly, as a consequential provision, the Governors in Council of Madras and Bombay were deprived of the power of making Regulations.
• Thirdly, the system of registration and publication of laws in the Supreme Courts was abolished.
• Fourthly, a new member was added in the Governor-General’s Council called the ‘Fourth Ordinary Member’, who would be a legal member unencumbered with executive business and engaged solely in the making of laws.
• Fifthly, the provisions were made for the appointment of a Law Commission for consolidation and codification of Indian laws.

Taken together, all these provisions make a full fledged legislative reform. The Section 43 of the act empowered the Governor-General in Council “to make laws and regulations for repealing, amending or altering any laws or regulations whatever now in force or hereafter to be in force.” However, there were several limitations on the Governor General in Council.

First, the Governor-General in Council would not have the power of ‘repealing, modifying or suspending any of the provisions of any act for punishing mutiny and desertion of officers or related to territories or the inhabitants under rule of the company or any prerogative of the Crown. Although the sovereignty of the Crown over the territories of the Company had already been declared unequivocally by the Charter Act of 1813, the charter act 1833 gave extended scope to the statutory restrictions.

Second, Governor-General in Council could not make any law giving power to any court other than Supreme Court without  previous sanction of the Court of Directors. It was also not supposed to sentence a  European subject of Britain or their children with death.

Third, all laws and regulations made by the Governor General in Council were subject to disallowance by the Court of Directors; but it would no longer be necessary to have them registered or published in ‘any court of justice’.

Finally, Parliament reserved its right to control, supersede, repeal or alter any time any law or Regulation whatsoever made by the Governor General in Council.

Subject to all these restrictions, it was provided that all laws and regulations made by the Governor-General in Council shall be of the same force and effect within and throughout the territories as any Act of Parliament would.

In summary, despite the reservation of Parliament’s supreme authority and of the right of the Court of Directors to issue directives, the Governor-General in Council were, for all practical purposes, given independent legislative power for the whole of British India. The Supreme Court had lost its share in law-making and the requirement of registration and publication of Regulations in the Supreme Court was formally abolished.