The Indian Council’s Act, 1861

• The Indian Councils Act 1861 was an Act of the Parliament of the United Kingdom.

Background

• The Act of 1858 exclusively introduced changes in the Home Government. It did not touch the administrative set-up in India.
• There was a strong feeling that sweeping changes in the constitution of India were called for after the great Revolt of 1857, especially in the direction of establishing closer contacts with Indian public opinion. selfstudyhistory.com
  • Sir Bartle Frere, Governor of Bombay, pointed out: “Unless you have some barometer or safety valve in the shape of a deliberative council, you will always be liable to very unlooked for and dangerous explosions (like 1857 Revolt).”
  • Syed Ahmed Khan opined that one of the major causes of the crisis of 1857-58 was the want of contact between the rulers and the ruled.
  • But question of associating Indians with the work of legislation was put off till things had settled down.
• Other reasons which necessitated changes in the constitution of India:
  • By the Charter Act of 1833 legislation had been centralised.
    • The Lagislative Council (at the Centre) had alone the power to legislate for the whole of the country. It dealt with all legislative matters, great and small.
    • It was ill fitted to do its job on account of its ignorance of the conditions prevailing in different parts of the vast country.
    • Nor had the Council the will or the time to seek out certain common legislative standards applicable to all parts of the country.
  • The working of the existing Legislative Council, set up by the Charter Act of 1853, had many shortcomings:
    • The Council had become a sort of a debating society or a Parliament on a small scale.
    • It had arrogated to itself all the functions and privileges of a representative body.
    • It adopted all the formalities of parliamentary procedure in the making of laws such as three readings and reference to committees which all caused delay.
    • Trying to act as an independent legislature, it sometimes stopped supplies, and did not work entirely according to the wishes of the Home Government.
    • It embarrassed the Indian Government by calling for information including secret matters.
    • All this the authorities in England desired to correct.
• After an exchange of views between the Home Government and the Government of India, the first Indian Councils Act was passed in 1861.

Provisions of the Act

• This act is known to have made notable changes in the composition of the Governor General’s council for executive & legislative Purposes.
• The council of the Governor General of India performed dual functions of executive and legislature.
• Changes for the executive functions of the Council:
  • The Executive Council of the Governor General was expanded and a fifth member of law was added.
    • Five members: home, revenue, military, law, finance, and after 1874, 6th member of public work
  • The Act empowered the Governor-General to make rules for the more convenient transaction of business in the Council.
    • This power was used by Lord Canning to introduce the portfolio system (Cabinet type) in the Government of India.
    • Up to that time the theory was that the Government of India was a government by the entire body of the Executive Council; so all business and all official papers had to be brought to the notice of the members of the Council. This system was very cumbrous and inconvenient.
      • Now each member of the Council of the Governor General was allocated portfolio of a particular department. 
      • Thus were laid the foundations of Cabinet Government of India, each branch of the Administration having its official head.
    • Under the new system the routine matters of administration were disposed of by the member in charge.
      • The more important matters were placed by the member concerned before the Governor-General and decided in consultation with him.
      • Only matters of general policy now came before the Executive Council as a whole.
    • The decentralisation of business made for efficiency.
• Changes for the legislative functions of the Council:
  • For purposes of legislation, the Viceroy’s Executive Council was expanded by the addition of not less than 6 and not more than 12 ‘additional’ members, who would be nominated by the Governor General and would hold office for two years.
  • Out of these, not less than half were required to be Non-Official (English or Indian).
  • This was a beginning towards the establishment of legislative system by adding legislative non official members to the Council of the Governor General.
  • However, the functions were limited to the legislation and it it would have no control over administration or finance or right of interpellation.
  • It was laid down that without the assent of the Governor General a bill relating to the public revenue or debt, religion, military, naval or foreign relations cannot be passed.
    • However, any such act might be dissolved by the crown acting through the secretary of State of India.
  • Imperial legislative Council was merely an advisory body.
  • The Viceroy was allowed, under the provisions of the Act, to overrule the council on affairs if he deemed it necessary – as was the case in 1879, during the tenure of Lord Lytton.
• Ordinance making power of Governor General:
  • The Governor General was empowered, in cases of emergency, to issue, without the concurrence of the Legislative Council, ordinances which were to remain in force for not more than six months.
• Restoration of legislative powers of Madras and Bombay:
  • The Governments of Madras and Bombay were deprived of their power of legislation by Charter act of 1833.
  • The Indian Councils Act 1861 restored the power of legislation to the governor-in-councils of Madras and Bombay in respective matters.
    • However, no laws passed by the provincial councils were to be valid until those received the assent of the Governor General.
    • Further, in certain matters (e.g. Currency, Posts and Telegraphs, naval and military matters) the prior approval of the Governor General was made obligatory.
  • The legislative council at Calcutta was given extensive authority to pass laws for British India as a whole, while the legislative councils at Bombay and Madras were given the power to make laws for the “Peace and good Government” of their respective presidencies.
• Formation of legislative councils in other provinces:
  • The act laid down the provision for the formation of legislative councils by Governor General in other provinces.
    • The Governor General was given the power to create new provinces for legislative purposes and also could appoint Lt. Governors for the same.
  • Legislative Councils were established in Bengal, the North Western Provinces (now called Uttar Pradesh) and the Punjab in 1862, 1886 and 1897 respectively under a provision in the Act of 1861.

Significance

• The gradual construction and consolidation of the mechanical framework of the government:
  • The three separate presidencies were brought into a common system.
  • The legislative and administrative authority of the Governor General in Council was asserted over all the provinces and extended to all their inhabitants.
  • The principal of recognising local needs and welcoming local knowledge was admitted, so that local councils were created or re created and a few non official and even Indian members were introduced for the purposes of advice.
• Laid the foundation of legislative devolution:
  • The Act by vesting legislative powers in the Governments of Bombay and Madras and by making provision for the institution of similar legislative councils in other provinces laid the foundations of legislative devolution culminating in the grant of autonomy to the provinces by the Government of India Act, 1935.
• The Secretary of State for India at the time the Act was passed, Sir Charles Wood, believed that the Act was of immense importance: “the act is a great experiment. That everything is changing in India is obvious enough, and that the old autocratic government cannot stand unmodified is indisputable.”
• Criticism:
  • By the Act of 1861 no attempt was made to demarcate the jurisdiction of the Central and Local legislatures as in federal constitutions.
    • The Governor General’s Council could legislate for the whole of India, and the provincial council for the whole of the province, with the reservation that before doing so in respect of certain matters the Governor General’s sanction had to be obtained.
  • The act did little to improve the influence of Indians in the legislative council. The role of council was limited to advice. No financial discussion could take place.
  • Not true legislature:
    • The legislative councils could not possibly be called true legislature either in composition or in functions.
    • The councils were merely committees for the purpose of making laws- committees by means of which the executive government obtained the advice and assistance in their legislation.
    • The ex officio and the official members were in a majority and every official legislation could be sure of the majority in its favour.
      • This was all the more easy because the nominated non official members (who were always in a minority) were reluctant to attend the sessions of the Council and were always in a hurry to depart.
  •  The functions of the new councils were strictly limited to legislation.
    • The councils could not inquire into grievances, call for information or examine the conduct of the executive.
    • The conduct of administration including all matters connected with finance remained under the exclusive purview and control of the wholly official Executive Councils.
  • The Act in no way established representative government in India.
    • Sir Charles Wood, the Secretary of State, while introducing the Bill made it clear that Her Majesty’s Government had no intention to introduce a representative law-making body in normal sense.
    • He likened the functions of the proposed Legislative Councils to those of the durbar of an Indian ruler where the nobles expressed their opinion but the ruler was not bound by their advice.