Mahima Gherani, Student of Law, VIT Law School, Chennai
Tracing back Indian history, we have seen the emergence of new legislative authorities over time, one outsourcing the other and coming up with new developments and amendments. In this material we analyse the growth of legislative authorities and their impact in India between the period of 1861 to 1935. Focussing from the roots of development, it started with the emanation of the Indian Councils Act 1861.
The Indian Councils Act 1861 sowed the seeds for the future legislative as an independent entity separate from the executive council. It was the first ever constitutional structure for India, whose significance is seen even today in the advancement of other legislative authorities. Primarily this Act had 3 main objectives:
- Expansion of the governor general’s legislative council
- Restoring legislative powers to the presidencies of Bombay and Madras which were taken away by the Charter Act 1833
- Providing for establishment of legislative bodies in other provinces ((P Jain, Indian Constitutional Law, 7th Edition, Pg 491)).
According to this Act, the Indian people were included in the Governor General’s Council for the first time in the history of India ((Available at http://csspoint.yolasite.com/resources/Indian%20Council%20Act,%201861%20&%201892.pdf)). Further the members of the Legislative Council were increased. It provided for expansion of the Executive Council and the numbers of its members were raised from 4 to 5 and its nomenclature was changed to Imperial Legislative Council. The new legislative council was to consist not less than 6 and not more than 12 persons nominated by the Governor General for 2 years, and at least one half of the nominated members were not to hold any office under the government ((M.P Jain, Indian Constitutional Law,7th Edition, Pg 491)). The Act provided for the creation of new provinces by the Governor-General and he had the authority to divide or alter the limits of any presidency, province or territory. Apart from this he was given the power to appoint Lieutenant Governors. With the Indian Councils Act for the first time Portfolio system started. Each member of the Council of the Governor General was allocated portfolio of a particular department. Lord Canning was the First to start a Portfolio system. The Governor General was authorized to exercise a veto and issue ordinances in a situation of emergency ((Available at http://www.gktoday.in/indian-councils-act-1861/)). Although the Indian Councils Act of 1861 marked an important step in the constitutional history of India, it had no relation with the problems of general public. The main drawback was that it made the Governor General omnipotent, as it brought the whole of India under his control which faced opposition from the masses over a long period of time. Subsequently, an Amendment Bill was presented in the House of Lords, which brought in the Indian Councils Act of 1892.
Known as the Amending Act of 1861, the Indian Councils Act 1892 contributes to the growth of representative institutions in the history of India. Lord Dufferin, during his rule realised a necessity for a more powerful Legislative Council to have greater freedom for the Government of India and so appointed a Committee to analyse the reports. The recommendations of this Committee formed the basis of the Act of 1892. The reforms of the Act in 1892 were mainly in the Legislative Councils in India. This act mainly contributed in 3 aspects. First, it increased the number of members in the Central and Provincial Legislative councils. Second, the principal of elections was indirectly introduced through the recommendation basis. And Thirdly, the functions of the Legislative Council were increased immensely. The council was now permitted to take decisions on the annual financial statements without the right to vote. The Indian Councils Act 1892 gave the members right to ask questions on Budget or matters of public Interest, but supplementary questions were not allowed ((Available at http://www.gktoday.in/indian-councils-act-1892/)). The act also increased the number of non officials in councils to between 10 and 16, but provincial representation was abolished. The Indian Council Act of 1892 gave the Indians an opportunity to participate in the legislative process and understand the rules and procedures associated with the same. Though these reforms had too many merits they were unsatisfactory in the following areas:
- The functions of the councils and its members were restricted
- The rules of nominations in elections were highly defective and fraudulent ((Available at http://www.indianetzone.com/24/the_indian_council_act_1892.htm)).
- Members questions could be disallowed without any proper reason
- There was no chance to amend the bills prepared by the Government.
Lord Dufferin was succeeded by Lord Curzon, who was responsible for the partition of Bengal in 1905. He held no good opinion of the Indians and tried to curb and destroy the self government by his rough oppressive measure. Lord Minto succeeded Lord Curzon, but had faced many difficulties due to the devastating measures that were already laid down by Lord Curzon.
Lord Morley, the Secretary of State for India, and Lord Minto, the Viceroy of India agreed to introduce major political and constitutional reforms. They appointed a committee and the annual report was submitted to the Viceroy, after which the Bill was drafted with negotiations between Minto and Morley. The Cabinet passed it in February 1909 to become an Act, which was to be called as the Minto-Morly Reforms or the Indian Councils Act 1909. This Act was a significant improvement in the sphere of constitutional reforms. The Act increased the size of the Central and provincial Legislative Council. The Legislative Councils under this Act contained 3 types of members- members of the Executive Council, nominated non official members and elected representatives of the people. The powers of both the legislative councils at the centre and state level were highly increased and the members were given the right to ask supplementary questions ((Available at http://historypak.com/minto-morley-reforms-1909/)). Further, the members of the Legislative Council were not authorised to discuss foreign relations of the Government of India and its relations with the Indian princes as their powers were restricted greatly. The greatest defect of Minto Morley reforms was the introduction of communal electorates for Muslims. The Indian Councils Act, 1909 was followed by the Delhi Durbar in 1911 for which the King of England came to India for the 1st time, to bring about a change in English policies in India. The government passed the Indian Press Act 1910, Act of 1913 and The Defence of Indian Act 1915 to suppress the rising Indian ambitions that grew over time. Indian nationalism rose very high under the impact if World War I, which changed the outlook of England people towards Indians. Britain wanted full cooperation in terms of money, man power and army from the Indians for the World War. This was the time when Montague succeeded Sir Austin Chamberlain in 1917 as the Secretary of State for India, who declared the future policy for India which brought revolutionary changes in their own way. In consultation with the Viceroy, Lord Chemsford, they drew a report which later came to be known as the Government of India Act 1919 ((Available at: http://www.publishyourarticles.net/knowledge-hub/history/explain-the-significance-of-government-of-india-act-1919.html)).
This Act of 1919 had its own Preamble and introduced changes in the Home Government in England, the Government of India, the provincial government and the civil services. It introduced changes in the constitution of the Indian Council i.e. it was to consist of not less than 8 and not more than 12 members whose term was fixed at five years with a fixed salary ((Available at: http://historypak.com/montagu-chelmsford-reforms/)). The central legislature was enlarged which in turn provided larger opportunities to influence the government. The Governor General became a very important and powerful member of the Executive Council. The Act also increased the number of Indians in the Executive Council to 3 members. The system of ‘Dyarchy’ or a kind of double government in the Provinces was introduced. Provincial subjects were divided into two categories “Transferred and Reserved.” Transferred subjects which were public health, education, local self-government, and agriculture were under the control of Minister; likewise all transferred subjects were unimportant. Reserved subjects included administration, police, land revenue etc. which were under the control of Governor with the help of his secretaries. It was indirect control over transferred department by reserved department. Hence, Governor was the head of transferred and reserved subjects. As regards the Central Legislature became bicameral which was to consist of the Council Of State (Upper House) and the Central Legislative Assembly (Lower House). In order to remove conflicts between these two houses, the Act of 1919 provided for joint committees, joint conferences and joint sittings of the Houses. The Governor was the pivot of all the administration and was the final authority in the reserved as well as transferred subjects. These reforms failed because of external as well as inherent defects of the system of Dyarchy which gave rise to friction. The way these provincial subjects were classified into Transferred and Reserved was more a myth than a reality ((See, Kerela Putra, The Working of Dyarchy in India, 57)). In short, the Act did not satisfy the aspirations of the people which were followed by a series of protests by the people due to their repressive measures such as the Rowlett Act, Jallianwala Bagh massacre and enforcement of Martial Law in Punjab. After the Act of 1919, the Government of India Act, 1935 was an important milestone on the road to a fully responsible government in India. The Act marked a radical change in 2 aspects: firstly, it introduced a federal form of government in place of the unitary form and secondly, the provisions of the Act envisaged a federation to which the native States of India were to accede. The main provisions of the Act were:
- The Act provided for the formation of All India Federation where in it was purely voluntary for the native states to join it.
- Division of power between the Centre and the units under three lists, namely, Federal List, Provincial list and the Concurrent list.
- The system of dyarchy at the province was abolished and it established dyarchy at the Centre ((Available at: http://www.preservearticles.com/201012271754/government-of-india-act-of-1935.html)).
- The federal legislature was to be bicameral, consisting of the Federal Assembly and the Council of States.
- The powers of the Indian Legislatures were severally restricted.
- The entire provincial administration was placed under the Ministers appointed by the Governor.
- The Act abolished the Indian Council of the Secretary of State.
- Federal Courts with original and appellate jurisdiction were established.
- The Governor General had all the administrative, legislative and financial powers.
This Act was criticised by many political leaders and thinks including Pandit Jawaharlal Nehru and Pandit Madan Mohan Malaviya. The later British Prime Minister, Mr Attlee observed that the keynote of the Bill was mistrust. Some important defects include the system of dyarchy at the Centre, indirect elections to the Federal Assembly, discretionary powers of the Governor General and the mistrust of Indians in their British Masters ((Landmarks in Indian Legal and Constitutional History, 10th Edition by B.M Gandhi, Page402)).
All these developments that took place during 1861–1935 are regarded as the most important ones in India’s History as they marked the beginning of setting up of various provisions that still exist in our Constitution.