The Charter Act of 1833: One Legislature for All India

Read the four "alls". All persons, so the distinction between British subjects and others disappears for legislative purposes. All courts of justice, whether established by His Majesty's charters or otherwise, so the Supreme Courts as well as the Company's courts, which answers the question Module II shows nobody could answer between 1774 and 1861. All places and things, so the whole territory. And all servants of the Company.

Compare it with section 36 of the Regulating Act, under which the Council could make rules for "the good order and civil government of the settlement at Fort William and the factories subordinate thereto". Sixty years, and a rule-making power for one settlement has become a legislature for a subcontinent.

Sections 45 and 46 provide for the addition of a member to the Council for legislative purposes, the Law Member, who was not entitled to sit at ordinary meetings. The first holder of that office was Macaulay. Section 46 contains the restriction on the power.

Sections 48 and 49 provide that laws and regulations shall be made at a meeting of the Council, with a quorum, and for the procedure when a measure is proposed.

Section 51 requires the laws made to be laid before Parliament, which is the continuation of the mechanism of section 37 of the Regulating Act.

The laws so made were called Acts, not Regulations, and were declared to have the same force as an Act of Parliament, subject to disallowance. That change of name is worth remembering: from 1834 India has Acts, and the Regulations of Cornwallis's Code belong to the period before.

Section 53: the Law Commission

Section 53 provided for the appointment of a Law Commission to inquire into the jurisdiction, powers and rules of the existing courts and police establishments, and into the nature and operation of all laws prevailing in any part of India, and to report on them.

The reason is the state of the law that the judges of the Supreme Court at Calcutta described in 1833, and which Cowell quotes at length. There were English Acts of Parliament specially provided for India and others of which it was doubtful whether they applied wholly, partly or not at all; the English common law and constitution, whose application was obscure; Muhammadan law and usage; Hindu law, usage and scripture; charters and letters patent of the Crown; regulations of the Governments, some made under Acts of Parliament and others founded on general powers or on rights as successors of the old native government; some requiring registry in the Supreme Court and others not; some effective throughout India, others peculiar to one Presidency or one town; commissions of the Governments; circular orders from the Nizamat Adalat and the Diwani Adalat; treaties of the Crown and of the Indian Government; and inferences from the law of nations. Their conclusion was that no one could pronounce an opinion on a disputed right about which doubt and confusion could not be raised.

The Law Commission is the answer to that, and the Indian Penal Code, the Code of Civil Procedure and the Code of Criminal Procedure are what came of it. Codification in India begins in section 53 of this Act.

Sections 56 to 68: the Company stops trading

Section 56 provides that the executive government of each of the Presidencies shall be as the Act directs; sections 57 to 68 deal with the government of the Presidencies under the new Governor-General in Council, the appointment of Governors and members, provisional appointments and vacancies.

The commercial change is the one every textbook gives: the Company's remaining monopoly, of the China trade and of tea, was abolished, its commercial business wound up, and it was to hold and govern the Indian territories in trust for the Crown. From 1833 the East India Company is a governing body that does not trade.

Sections 76 to 79, and section 87

Sections 76 to 79 fix the salaries of the Governor-General, the Governors and the members of Council and provide for the consequences of departure from India.

Section 87 is the provision every student should be able to quote, and it is short enough to learn:

"That no Native of the said Territories, nor any natural-born Subject of His Majesty resident therein, shall, by reason only of his Religion, Place of Birth, Descent, Colour, or any of them, be disabled from holding any Place, Office, or Employment under the said Company."

Three observations, and a good answer gives all three.

It is a real guarantee and it was meant as one. It is the first statutory declaration against discrimination in Indian constitutional history, and its language, "religion, place of birth, descent, colour", is recognisably the ancestor of article 16(2) of the Constitution.

It is confined to employment under the Company. It is not a general right of equality, and it says nothing about the criminal procedure that Module III's chapter on the rule of law describes.

And it was not honoured. The higher offices remained closed to Indians in practice for decades, and the Ilbert Bill controversy of 1883 turned on a different but related inequality. That gap between the statute and the practice is the fair criticism of the Act, and it is more useful than praising or condemning the section by itself.

A worked example

A question that could not be answered in 1830 and can be answered in 1840.

"May the Indian legislature make a law binding on the Supreme Court at Calcutta?"

In 1830: doubtful. The Supreme Court was a Crown court under a charter, the Council's regulations were void unless registered in it under section 36 of the Regulating Act, and the Settlement Act had allowed regulations for the provincial courts without registration but had said nothing about the King's courts.

In 1840: yes. Section 43 gives power to make laws for all courts of justice, whether established by His Majesty's charters or otherwise, and the jurisdictions thereof. The question that produced the crisis of 1780 has been answered by a statute.

What beginners get wrong

"The Charter Act of 1833 is a charter." It is an Act of Parliament. It is called a Charter Act because it renewed the Company's charter.

"It created the office of Governor-General." The Regulating Act created a Governor-General of the Presidency of Fort William in Bengal in 1773. The Act of 1833 made him Governor-General of India, with the superintendence, direction and control of the whole civil and military government of all the territories.

"Madras and Bombay lost their governments." They lost their legislative powers, which were vested exclusively in the Governor-General in Council. Their governments continued, and their legislatures were restored by the Indian Councils Act 1861.

"Section 87 gave Indians equality." It forbade disqualification from office or employment under the Company by reason only of religion, place of birth, descent or colour. It is not a general equality clause, and in practice it was not honoured.

Limits and criticism

The Act is the most important instrument in this half of Module IV and its defects are structural.

The legislature is the executive. The Governor-General in Council legislates, governs and, until 1801 and in the criminal sphere for longer, judged. The Law Member is added for legislative purposes, but he is a servant of the same government, and there is no separate legislative body, no debate in public and no representation of anybody.

The power is enormous and the check is distant. Section 43 is as wide a legislative power as any in this book, and the only checks are the requirement to lay laws before Parliament and the Crown's power of disallowance, both exercised five thousand miles away.

And section 87 is a promise without a mechanism. It disables nothing and provides no remedy: a person refused an office by reason of his religion had no court to go to. Compare article 16(2) of the Constitution, which is enforceable under articles 32 and 226.

What the Act achieved, and it is considerable, is a single legislature with power over every person, every court and every place in British India, and a Law Commission to bring order to the law it inherited. Everything in Indian statute law from the Penal Code onwards is built on those two sections.

Quick revision

• Charter Act 1833, 3 & 4 Will. IV c. 85.
• s.39: the superintendence, direction and control of the whole civil and military government of all the territories vested in the Governor-General in Council; the Governor-General of Bengal becomes the Governor-General of India.
• s.43: power to make laws for all persons, British or native, foreigners or others; for all courts of justice, whether established by His Majesty's charters or otherwise, and their jurisdictions; and for all places and things throughout the territories. Madras and Bombay lose their legislative powers.
• ss.45 to 46: a Law Member added for legislative purposes; ss.48 to 49 procedure and quorum; s.51 laws laid before Parliament. The laws are now called Acts.
• s.53: a Law Commission, out of which the Indian codes came.
• ss.56 to 68: the Presidencies under the new government; the Company's remaining monopoly of the China trade and tea abolished; it governs in trust for the Crown.
• s.87: no disqualification from any place, office or employment under the Company by reason only of religion, place of birth, descent or colour. The ancestor of article 16(2).

Test yourself

1. What did section 39 do, and how does it differ from section 9 of the Regulating Act? Section 39 vested the superintendence, direction and control of the whole civil and military government of all the Indian territories in the Governor-General in Council, making him Governor-General of India. Section 9 of the Regulating Act had given the Governor-General of Bengal a superintendence over Madras and Bombay confined to war and treaties.

2. State the width of the power in section 43. Power to make laws and regulations repealing, amending or altering any laws or regulations in force, and to make laws for all persons whether British or native, foreigners or others, for all courts of justice whether established by His Majesty's charters or otherwise and their jurisdictions, for all places and things throughout the territories, and for all servants of the Company.

3. Why was a Law Commission needed, and what came of it? Because the law in force in India was, as the judges of the Supreme Court described in 1833, an unmanageable mixture of English Acts of doubtful application, English common law, Muhammadan and Hindu law, charters, regulations of several kinds, circular orders and treaties, so that no opinion on a disputed right was safe. Section 53 provided for the Commission, and the Indian Penal Code and the procedural codes came from its work.

4. Quote section 87 and give its modern counterpart. That no native of the territories, nor any natural-born subject of His Majesty resident therein, shall by reason only of his religion, place of birth, descent, colour, or any of them, be disabled from holding any place, office or employment under the Company. Its modern counterpart is article 16(2) of the Constitution.

5. Give the two structural criticisms of the Act. That the legislature was the executive, since the Governor-General in Council legislated and governed with no separate legislative body and no representation; and that the power in section 43 was enormous while the only checks, laying before Parliament and disallowance by the Crown, were exercised in England.