The Indian Councils Act 1861: How Law Was Made

Section 22: the width of the power

The Governor-General in Council shall have power at meetings for the purpose of making laws and regulations, and subject to the provisions of the Act, to make laws and regulations for repealing, amending, or altering any laws or regulations whatever, now in force or hereafter to be in force in the Indian territories under Her Majesty's dominion, and to make laws and regulations for all persons, whether British or Native, foreigners or others, and for all courts of justice whatever, and for all places and things whatever within the said territories, and for all servants of the Government of India within the dominions of princes and states in alliance with Her Majesty; and the laws so made shall control and supersede any laws and regulations in any wise repugnant thereto.

That is section 43 of the Charter Act of 1833 restated and extended: the last limb, servants of the Government of India in the dominions of allied princes, is new, and it is how the Indian legislature reached British officers in the Princely States.

Section 43: the reserved subjects

The Act does not leave that power unqualified, and section 43 contains the restriction that is examinable.

It shall not be lawful for the Governor in Council of Madras or Bombay, except with the sanction of the Governor-General, previously communicated to him, to make regulations or take into consideration any law or regulation for any of the purposes specified, which include:

1. affecting the public debt of India, the customs duties, or any other tax or duty imposed by the authority of the Government of India for its general purposes;
2. regulating any of the current coin, or the issue of any bills, notes or other paper currency;

and the other heads the section lists: the posts and telegraphs, the penal code, religion or religious rites and usages, the discipline of the military and naval forces, patents and copyright, and the relations of the Government with foreign princes or states.

A student should learn the idea rather than the list: there is a class of subjects on which a provincial legislature may not even take into consideration a Bill without the Governor-General's previous sanction. That is the ancestor of the requirement of the Governor-General's or the President's recommendation for certain Bills, which appears again in the Government of India Act 1935 and in articles 117 and 207 of the Constitution.

Section 23: the ordinance power

Notwithstanding anything in the Act, it shall be lawful for the Governor-General, in cases of emergency, to make and promulgate from time to time ordinances for the peace and good government of the territories or any part of them, subject to the restrictions in section 22; and every such ordinance shall have like force of law with a law or regulation made by the Governor-General in Council for not more than six months from its promulgation, unless the disallowance of it by Her Majesty is earlier signified to the Governor-General by the Secretary of State.

That is article 123 of the Constitution in embryo, and the resemblance is close enough to state: an emergency, a promulgation by the head of the executive alone, the force of law, and a fixed period after which it lapses. The Constitution's period is six weeks from the reassembly of Parliament; the Act's is six months from promulgation.

Sections 24 to 27

Section 24: no law or regulation made by the Governor-General in Council shall be invalid by reason only of some informality, subject to the power of disallowance.

Section 25 removes doubts about the powers of the Governor-General of India.

Sections 26 and 27 deal with leave of absence for members and vacancies in the office of an ordinary member.

A worked example

Follow one Bill through the Act.

1. A member gives notice of a Bill in the Legislative Council. If the subject is one of those in section 43 and the legislature is Madras or Bombay, the Governor-General's previous sanction is needed before it can even be taken into consideration.
2. The Council meets at the time and place fixed under section 16, with a quorum under section 19, and proceeds under the rules made under section 18.
3. The additional members nominated under section 10 sit and vote; the ordinary members sit; nobody is elected.
4. The Bill is passed and presented to the Governor-General for assent under section 20.
5. An authentic copy goes to the Secretary of State, and Her Majesty may disallow it under section 21, whereupon it becomes void.
6. The law, once made, controls and supersedes any repugnant law under section 22.
7. And if the matter had been urgent and the Council not sitting, the Governor-General could have promulgated an ordinance under section 23, good for six months.

What beginners get wrong

"The Council could legislate on anything." Section 22's power is very wide, and section 43 makes a class of subjects require the Governor-General's previous sanction for the provincial legislatures. There were also the restrictions carried forward from earlier Acts protecting the authority of Parliament, the Crown's prerogative and the Company's charter.

"An ordinance under section 23 was permanent." It had the force of law for not more than six months from promulgation, and could be disallowed earlier.

"Assent was a formality." The Governor-General's assent was required by section 20, and the Crown could disallow under section 21. Both were real powers, exercised.

"Section 43 restricted the Governor-General in Council." Section 43 restricts the Governor in Council of Madras and Bombay, and the sanction it requires is the Governor-General's.

Limits and criticism

The Act gives India a legislature with wide powers and no representative character, and the fair criticism is about what it left out rather than what it contained.

There was no control over the executive. The Council could not question the Government, could not move a resolution and could not vote on the budget. It considered the Bills laid before it, and nothing else. The right to discuss the budget arrives in 1892 and the right to move resolutions and divide in 1909, which is exactly what the next two chapters are about.

Legislative initiative was in practice the Government's. A body whose non-official members are nominated and whose business is arranged by the Government is not going to initiate much, and it did not.

And the two checks were both in London. Assent by the Governor-General and disallowance by Her Majesty are checks on the legislature, not on the executive, and neither was available to anybody in India.

What the Act did achieve is a legislature in the technical sense, with meetings, quorum, rules of business, assent, and a power in section 22 as wide as any in this book. It is the machine; the next fifty years are about who is allowed to operate it.

Quick revision

• ss.16 to 19: place and time of meetings, officers, rules of business, and a quorum.
• s.20: laws presented to the Governor-General for assent. s.21: copy to the Secretary of State; Her Majesty may disallow, and the law then becomes void.
• s.22: power to repeal, amend or alter any law in force, and to legislate for all persons, all courts, all places and things, and for servants of the Government of India in allied States; such laws control and supersede repugnant laws.
• s.43: Madras and Bombay may not legislate or even take into consideration a Bill on the reserved subjects without the Governor-General's previous sanction: the public debt, customs and taxes; the currency; posts and telegraphs; the penal code; religion and religious usages; military and naval discipline; patents and copyright; and relations with foreign princes.
• s.23: the Governor-General may in an emergency promulgate ordinances with the force of law for not more than six months. The ancestor of article 123.
• s.24: informality does not invalidate.

Test yourself

1. Set out the width of the power in section 22. Power to repeal, amend or alter any laws in force, and to make laws for all persons whether British or native, foreigners or others, for all courts of justice, for all places and things within the territories, and for all servants of the Government of India in the dominions of allied princes; such laws controlling and superseding any repugnant law.

2. What does section 43 restrict, and whose sanction does it require? It restricts the Governor in Council of Madras and Bombay from making regulations, or even taking a Bill into consideration, on the reserved subjects, which include the public debt and taxation, the currency, posts and telegraphs, the penal code, religion, military and naval discipline, patents and copyright and relations with foreign princes. It requires the previous sanction of the Governor-General.

3. Describe the ordinance power and its modern counterpart. Under section 23 the Governor-General might in cases of emergency promulgate ordinances for the peace and good government of the territories, having the force of a law made by the Governor-General in Council for not more than six months from promulgation unless disallowed earlier by Her Majesty. Its counterpart is article 123 of the Constitution.

4. What two checks lay on a law made under the Act, and where were they exercised? The assent of the Governor-General under section 20, exercised in India, and disallowance by Her Majesty on the advice of the Secretary of State under section 21, exercised in London.

5. What could the Council of 1861 not do? It could not question the Government, move resolutions, or vote on the budget. It could consider and pass the Bills laid before it, and nothing more. The right to discuss the budget came in 1892 and the right to move resolutions and divide in 1909.