The Indian Council Act, 1861

Introduction:

The British came to India initially as a trading company and used to acquire territory solely for commercial purposes.  The Charter 1833 introduced the Law Member. The Law Member was considered as the fourth member of the Executive committee in the office of Governor-General. This member was responsible for all legislative functions for the Company in the Indian Colony. The Governor-General was considered as Executive Member for the Council. The Legislative Council under Governor-General was on the lines of British Parliament and resort to inquest and disposal of the petition. However, Home Authorities were not satisfied and then President of Board Control, Sir Charles Wood assumed more weight and authority than necessary for the purpose of elaborating the law was given.

The Revolt of 1857 put fuel to the fire and showed the inefficiency of the Council. The seat of power then was shifted from the Company to the British Crown. The idea of introducing the Law Member in the Council was to avoid concentration of power in a single hand. Additional aim to separate legislation from the executive was also present under Charter 1853 where Law Member was given whole power to legislate. [1]

Historical Background

The British Government was tackling with the rectification of defects in the Legislative Council by investigating in various state functions. In contemporary, the great revolt of 1857 broke. The British Crown then realized that lack of contact and understanding between the Home Government and colonial subjects was one of the principal causes of the outbreak of the mutiny. Lord Dalhousie suggested representation of Indians in the governance may ease up the process. The Mutiny was considered as a result of unrepresented subjects in Governance according to Sir Syed Ahmad Khan.[2]

The Presidencies were too not happy with their member representation to Legislative Council as Charter 1853 allowed members from Presidential Government to be represented in Legislative Council. Lord Canning too was not happy with the inadequate representation of Local Government. The lack of Provincial Legislative Councils for Bengal, Northeast and Punjab can be considered the reason for unrest in 1857. The ideas of having representation at the level of Governor General’s Council by Presidencies as well as Provinces was discussed widely.

In fact, the administrative procedures followed by Governor General’s Council was unpleasant, leading to unnecessary delay, impeded business and hinder the efficiency of the administration. As the working was open to press and public, clashes between Government Servants and judges were clearly seen. The judges often took up the position of leaders of the opposition and criticized, undermined authority and prestige of Government.

The demands of Indian People to provide for substantial changes in Governmental Machinery and modification in Constitutional Arrangement lead to enactment of Government of India Act 1858. The Act abolished Dual Government system, appointed Secretary of State and constituted All India Council for assistance. The abovementioned changes were made for Home Government and reciprocal changes needed in Indian Government too.

Issues Regarding the Passing of Indian Council Act, 1861

The following were issues related to the said Act

• The difference of opinion over Income Tax Bill between the Supreme Government and Madras Presidency
• Validity of laws enacted by Non- Regulation Provinces without formal enactment by Legislative Council
• Insistence of Legislative Council on a certain correspondence between Secretary of State and Government of India[3]

Provisions of Indian Council Act, 1861

Lord Canning submitted Scheme of Reform before Secretary of State. Lord Charles Wood took forward this Bill before Houses of British Parliament and it got Royal Assent on August 1, 1861. The Act was enacted and came in to force by end of the said year.

The Act majorly stand on three pillars which relates to provisions of

1. Central Executive
2. Central Legislative
3. Provincial Legislative

1. Provisions Pertaining to Central Executive

• The Act enlarged the Executive Council of Governor-General. It consists of five-member out of which members must have the following qualifications
  • Service of at least 10 years in India under Company or Crown, or
  • Barrister or Advocate of five years’ standing

• The Secretary of State had the power to appoint Commander in Chief as an Extraordinary Member of Executive Council.

• The Act allowed the GOVERNOR GENERAL to make laws and rules to regulate the conduct of Business. This marked beginning of PORTFOLIO SYSTEM in which every Member of the Council was responsible for his Department and acts done in Council reckoned as acts of GOVERNOR GENERAL in Council.

• The GOVERNOR GENERAL could appoint a President to Council, in case of his anticipatory absence from Headquarter. The President may enjoy all powers except to assent, withhold or reserve the assent in case of any regulation.

• The GOVERNOR GENERAL had the power to overrule even majority in light of Safety, Tranquility and Interest off British Possessions in India.

• The GOVERNOR GENERAL can create, alter and divide boundaries of Presidencies and Provinces. He may also appoint Lieutenant Governors for them

• The GOVERNOR GENERAL in Council can empower GOVERNOR GENERAL alone to exercise all or any power of GOVERNOR GENERAL in Council except making laws and regulations.

2. Provisions Pertaining to Central Legislative

• The Council established under Act 1953 was remoulded. The enlargement was male members may range from six to twelve member who were appointed by Governor-General for two years. Of these, half will be Non-Official members. The unofficial members may not be from Civil or Military services of the Crown. The Lieutenant Governor will be in charge of his province wherever appointed.

• The functions of the new Legislative Council were strictly confined to legislation. The business except for the Consideration and Enactment of Legislative measure or entertain motion except motion to leave to introduce Bill or reference thereof were prohibited.

• The legislative Council had to make laws over Dominion of India. But subjects of Public Revenue, Religion, Army, Navy or Foreign Relations may not be introducing except previous sanctions of GOVERNOR GENERAL. GOVERNOR GENERAL’s consent was required in the passing of every Act and Regulation passed by Council.

• The power of GOVERNOR GENERAL In Council was extended to making, repealing, amending and altering laws from time to time.

• GOVERNOR GENERAL was allowed to proclaim emergencies and promulgate Ordinance solely without his Council for 6 Months. He may intimate Secretary of State about reasons of such Ordinance.[4]

3. Provisions Pertaining to Provincial Legislative

• The Government at Madras and Bombay were restored. The powers to make and amend Acts were too given. Councils were expanded Advocate General and other members were added. These members could sit and vote for purpose of making laws. Although no demarcation was made for subjects of Centre and Province but certain subjects were reserved for previous approval and sanction from GOVERNOR GENERAL.

• The subjects for which GOVERNOR GENERAL’s sanction was required includes Army, navy, Foreign and Political Affairs, Custom, Coinage and Currency, Copyright, Penal Code, Religion, Post and Telegram System, etc.

• There were no new local Legislations in India except Madras and Bombay. Further actions of GOVERNOR GENERAL lead to the establishment of such Legislative Councils in Bengal, North Eastern Province and Punjab.

• The Act allowed GOVERNOR GENERAL to proclaim time to time for legislative purposes to appointing Lieutenant Governor. The Lieutenant Governor could alter boundaries of the said Province. Such alteration is by the effect of a proclamation by Governor-General with the prior sanction of Crown.

• The local Legislations had no control over their Acts, jurisdiction or procedures of High Court. The powers were exclusive in hands of GOVERNOR GENERAL and Parliament.

Significance of the Act

The Act, according to Lord Cowell, was an attempt to consolidate and amend former Acts of Parliament related to the constitution and functions of Council of The Governor-General and gives power to Governors in Council of Bombay and Madras to make laws for their Presidencies and enable like Legislative Authorities to be constituted in other parts of Her Majestic’s Dominions. These views were similar to Prof. Gurmukh Nihal Singh who considered this Act as remarkable in Indian Constitutional history because of-

• Inclusion of Natives as view put by Sir, Bartle Freire and Sir Sayed Ahmed. They emphasized on the absolute necessity of non-official advice of natives in working of Legislative Council. The addition of Non-Official Members for advice at Central and Provisional Levels gave Government insights to views of Natives and remove any difficulty or misunderstanding regarding the intention of the government.
• Restoration of Legislative Power in Provinces of Bombay and Madras as similar Legislative Authorities were set up. The ideals of Legislative Devolution which granted internal autonomy to Provinces and Presidencies became alive in these institutions.
• Increase In Public Responsiveness as the Government and natives could understand each other well, as well as problems, were dealt with rapidly.

Defects of the Act

The Act though so good on paper faced various practical difficulties.

• The Provincial Legislative Council which suppose to be enacting laws for that Province on certain matters were treated as mere committees of the Central Legislative Council headed by Governor-General. There were no debates, discussion or allocation of proper budget to these Councils at Provincial levels.
• The Inclusion of Non-Official Members in various Legislative Councils at Central, Presidency and Provincial level for advice failed as they were nominated not elected. They were Diwans or Zamindars with very less Legislative Interests. They knew very less English and used to often miss the meetings of Council. Being nominee of Governor-General or Governors of presidencies, they rarely criticized or opposed any government policies. They naturally shouldn’t be considered as true representatives of the masses. Therefore their presence was merely formal and ceremonial.

Conclusion

The Act provided for an end to Centralized legislation as laid down the foundation of Decentralized legislations. The Act became a guideline for future Government of India as it was carried on till in 1947.

The Legislative Body with Non-Official Members, Portfolio System and power to promulgating Ordinance are some of the gifts of Indian Council Act 1861 which we even see today in our Constitution. The assignment of departments to various members popularly known as Portfolio System is still a prevalent practice. This measure then was taken to relieve the Governor-General from routine and formal business and so he can devote more time and attention to an important matter concerning to Administration of India.

The definite Legislative Process and Federalism were laid down in this Act. The Provincial Legislative Councils founded the roots of today’s State Legislative Assemblies which acted like miniature Parliament. The concept of Secretary of State was also introduced by this enactment. 

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References:

[1]  Lee Warner: The life of Marquis  of Dalhousie, Vol II, pp 234-235

[2] Lees, WN : An Essayon the cause of Indian Revolt , P12

[3] Ilbert:C:The Government Of India( 2nd Ed), p 100

[4] Keith , AB : Speeches and Documents Of Indian Polity, Vol II , p25