Indian
Councils Act, 1861
According
to the Herbert Cowell, “The events which immediately led to the passing of the
Indian Councils Act 1861 were the differences which arose between the Supreme
Government and the Government of Madras on the Income Tax Bill, the doubts
which had been raised as to the validity of laws introduced into non-regulation
Provinces without enactment by the Legislative Council, and the address of
Legislative Council for the communication to it of certain correspondence
between the Secretary of State and the Supreme Government of India.”
While
introducing the Bill in the House of Commons, Sir Charls Wood complained that
quite contrary to what was intended, the Legislative Council had become a sort
of debating society or petty Parliament. He Quoted with approval the criticism
of Sir Lawrence Peel that the Legislative Council “has no jurisdiction in the
nature of that of a grand inquest of the nation. Its functions are purely
legislative and are limited even in that respect. It is not an Anglo-Indian
House of Commons for the redress of grievances, to refuse supplies and so
forth.”
The view
of the British Government with regard to the changes to be made was expressed by
Sir Charles Wood in these words, “ I propose that when Council meets for the
purpose of making laws, the Governor-General should summon in addition to the
ordinary members of the Council, not less than six nor more than twelve
additional members of whom one-half at least shall not hold office under the
Government. These additional members may be either Europeans, persons of
European extraction or Natives. Lord Canning strongly recommends that the
Council should hold its meetings in different parts of India for the purpose of
obtaining at times the assistance of those native chiefs and nobles whose attendance
at Calcutta would be impossible or irksome to themselves. I do not propose that
the Judges ex-officio shall have seats in the Legislature, but I do not preclude the Governor-General from summoning one of their number if he chooses.
The council of the governor-General, with these additional members, will have
power to pass laws and regulations affecting the whole of India and will have a
supreme and concurrent power with the minor legislative bodies which I propose
to establish in the Presidencies and other parts o India.”
Provisions of the Act
1. The new
Act provided for the addition of a fifth member to the Executive Council of the
Viceroy. He was required to be a gentleman of legal profession, a jurist rather
than a technical lawyer.
2. The Act
empowered the Governor-General to delegate special business to individual
members of the Executive Council and henceforward the various members of
Council had their own portfolios and dealt on their own initiative with all but
the most important matters. The most important matters were placed before he
Governor-General and if any differences of opinion appeared, those were
considered by the whole council. Governor-General was authorized to nominate a
President who was to president over the meeting of the Executive Council in his
absence. He was given the power to making rules and regulations for the conduct
of the business of the Executive Council.
3. The
Executive Council of the Governor-General was to be strengthened by the
addition of not less than 6 and not more than 12 members nominated by the
Governor-General of purposes of legislation. Not less than half of the
additional members were to be non-official and they were to hold office for two
years. The function of the Council was strictly limited to legislation and the
Act expressly forbade the transaction of nay other business.
4. The
Government of Bombay and Madras were given the power to nominate the
Advocate-General and not less than four and not more than 8 additional members
at the Executive Council for purposes of legislation. These additional members
were to hold office for two years. The business of the council was to be
strictly legislative. The consent of the Governor and the Governor-General was
made necessary for all legislation passed or amended by the Governments of
Madras and Bombay.
5. No
distinction was made between the central and provincial subjects. However,
measures concerning public doubt, finances, currency, post office, telegraph,
religion, patents and copyrights were ordinarily put under the control of the
Central Government.
6. The
Governor General was given the power to create new provinces. He was also given
the power to appoint Lieutenant-Governors. He was also authorized to divide or
alter the limits of any presidency, province or territory.
The
Indian Councils’ Act of 1861 marked an important step in the constitutional
history of India. It made a beginning in representative institutions and
legislative devolution. It helped the Governor-General to associate
non-official Indians for purposes of legislation. The Central and provincial
Councils fulfilled the three-fold purposes of publicity, discussion and
information. The people got an opportunity to put forward their grievances and
the government got an opportunity to defend its policy. However, it is to be
noted that the non-official members of the Council were nominated by the
Viceroy and not elected by the people.
The Act
of 1861 had been considered to be a retrograde measure. The right of asking
questions and the right to deliberate on matters of policy were not given to
it. The Position of the legislative councils has been described thus, “ They
are committees for the purpose of making law-committees by means of which the
Executive Government obtains advice and assistance in their legislation, and
the public derive the advantage of full publicity being ensured at every stage
of the law-making process…… The Councils are no deliberative bodies with
respect to any subject but that of immediate legislation before them. They
cannot enquire into grievances, call for information or examine the conduct of
the executive.”
According
to Principal G.N. Singh the Indian Councils Act. 1861, is important in the
constitutional history of India for two chief reasons. “Firstly because it
enabled the Governor-General to associate the people of the land with work of
legislation, and secondly by vesting legislative powers to the Governments of
Bombay and Madras and by making provision for the institution of similar
legislative Councils in other provinces it laid the foundations of the policy
of legislative devolution which resulted in the grant of almost complete
internal autonomy to the provinces in 1937”
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