INDIAN COUNCILS ACT OF 1861
FACTORS LEADING TO THE ACT
◆Act of 1833 had introduced centralisation of legislation and the central legislature was empowered to make laws for all the territories. Bombay and Madras having lost their right to make their own laws. Such centralisation of law-making power was resented by the provincial governments. The central legislature was also ill-fitted for the job as first, it was ignorant of the local conditions and second, it neither had the time nor the will to establish legislative standards applicable for the whole of the country.
◆Act of 1853 had set up a Legislative Council which had grown into a sort of a debating society or a petty Parliament. With the passage of time, it adopted all the formalities of parliamentary nrocedure and laid down an elaborate procedure for transaction of business, such as three readings and references to committees which all caused great delay. Further, in an atternpt to act as independent legislature, it sometimes even stopped supplies, much to the embarrassment of the Home Government.
◆Act of 1858 had brought about changes only in the Home Government and did not touch the administration set-up in India. After the Revolt of 1857, it was felt that sweeping changes in the constitution were called for. It was also felt that there was a lack of contact and understanding between the government and the governed. The government now understood the dangers of excluding the Indians from the legislation of the country. The question of giving representation to Indians in the legislative councils was mooted even in 1858, but was put off for fear that the reform may be ascribed to the fear the rebellion had produced.
To address the above issues, further changes were made in the next Act in 1861.
Sir Bartle Frere, Governor of Bombay had remarked, 'Unless you have some barometer or safety valve in the shape of a deliberative council, I believe you will always be liable to very unlooked for and dangerous explosions'.
Main Provisions of the Act of 1861
The Regulating Act had begun the process of centralisation, culminating in the Act of 1833 which took away legislative powers from the provinces. The Indian Councils Act of 1861 started an opposite process-a process of decentralisation. Lord Canning (the then GG) and Sir Charles Wood (Secretary Or State) were responsible for the passing of the Act of 1861.
Note: Main provisions of the Act are discussed below. These provisions introduced changes in the size, Composition and functions of the Central Legislature. The figures denoting the size do not incude the Governor-General and the Commander-in chief who were ex-officio members.
Change in Size and Composition of Central Legislature
• The Executive Council of the GG was enlarged by the addition of a fifth member who was to De a jurist. The Secretary of State retained the power to appoint the Commander in Chief as an extraordinary member. A Governor could also be co-opted as a member if the Council meeting was held in a province.
•For the purpose of legislation, it enlarged the Central Council by addition of not less than six and hot more than twelve additional members. These were to be nominated by the GG for a period of two years and it was provided that at least half of them were to be non-officials (i.e. persons not in the civil or military service of the Crown). Under this provision, three Indians were usually nominated, though no statutory provision was made for the admission of Indians. In this way, in the absence of represen tative bodies, the Executive Council of the GG was enlarged by addition of these non-officials. Further, the function of the Council for legislative purposes was confined strictly to legislation only. It was an answer to the attempt made by the Legislature created und the Act of 1853 to transform itself into and sort of a debating society.
In those days, it was not easy to find qualified Indians familiar with Western methods of governance. The kind of non-officials the Act had in view were probably the Indian rajas or diwans or big zamindars or even retired officials of high rank. For the first 20 years, this power to nominate non- officials was used to expand official patronage. Even among the princes, only those who had helped the British during 1857 were nominated. Yet, it was a subtle acceptance of the fact that Indian opinion was worth listening to and that the British were not the best judge of Indian wishes. No one could have imagined then that this very same body, in the course of time, would evolve into a strong representative body of the Indian people.
Changes in Functions of Central Legislature
• The Act restored the legislative powers of Councils of Bombay and Madras. However, rigid restrictions were placed on legislative powers of these provinces and no laws passed by the provincial councils were to be valid until they received the assent of the GG. In certain matters such as Defence and Communication, prior approval of the GG was needed.
• The Act allowed establishment of new Councils in other Provinces. Accordingly, Councils of Bengal (1862), North-Western Provinces (1886) and Burma and Punjab (1897) were established.
• The GG was empowered to issue ordinances in case of emergency and without the concurrence of the Legislative Council, which could remain in force for a maximum period of six months.
• The Act also empowered the GG to create new provinces for legislative purposes and appoint Lieutenant Governors for them. It also empowered him to make territorial adjustment between different provinces.
• Provision regarding decentralisation of business The Act empowered the GG to make rules for more convenient transaction of business in the Council. Using this authority, Lord Canning introduced the portfolio system in India for the first time. Prior to this, the Government of India was considered a government by the entire body of the Executive Council; and so, all business and matters had to be brought before the Council. This was quite cumbersome and caused unnecessary delays. Canning now divided the various departments among the Council members, thus laying the foundation of Cabinet System in India. Now routine matters of administration were discharged by the member-in-charge and more important ones were decided in consultation with the GG. Only matters of general policy were placed before the Council as a whole.
Significance of the Act of 1861
From the constitutional perspective, the Act was important on account of the following reasons:
◆It introduced the process of legislative devolution which gradually gave more and more legislative functions to the provinces and culminated in the grant of autonomy to provinces by the Act 1935
◆It initiated a process of Indian association in legislation.
◆It initiated recognition of local needs and local knowledge by means of local councils.
◆ The local councils also ensured publicity and discussion throughout the law-making process.
However, it is noteworthy that no attempt was made to demarcate the legislative powers of Centra and Local Legislatures and the GG could legislate for the whole of India, The local councils created were mere committees for assisting and advising in legislative work. Charles Wood, the author of the Act, had clarified that the proposed local councils were to function more like the Darbar of an Indian ruler, where the nobles could express their opinion , but the ruler was not bound by their advice.
