The Indian Councils Act 1861: the Council Remade

So the legislative machinery of 1833 and 1853, which chapters 580 and its successor described, was not swept away wholesale. The sections that fixed the composition and the law-making procedure went; everything else was carried forward and read subject to the new Act.

Sections 3 to 9: the ordinary Council

Section 3: there shall be five ordinary members of the Council of the Governor-General, three of whom shall from time to time be appointed from among persons who have served the Crown in India for at least ten years.

That is an increase from the four of section 40 of the Charter Act of 1833, and the fifth member was in practice the Law Member, who by the Act of 1833 had sat only for legislative purposes and who now became an ordinary member of Council.

Section 4 continues the existing members. Section 5 provides for their appointment by the Secretary of State in Council, with the concurrence of a majority of members present at a meeting. Section 6 provides for the Governor-General's absence when he visits part of the territories, and for the nomination of a President in his place; section 7 for the situation when the Governor-General or such President is obliged to leave.

Section 8 is the one whose significance is easy to miss: it is lawful for the Governor-General from time to time to make rules and orders for the more convenient transaction of business in the Council.

That is the statutory basis of the portfolio system: business is distributed among members, each taking a department, and the Council acts on the member's disposal of a matter unless it is brought before the whole body. Before it, every question came to the whole Council. Modern Indian government, in which a minister disposes of the business of his department, begins in section 8 of this Act.

Section 9: the Council shall assemble at such place or places within the Indian territories as the Governor-General in Council appoints.

Section 10: the additional members

This is the section MU's topic is about, and it should be given in detail.

For the better exercise of the power of making laws and regulations, the Governor-General shall nominate, in addition to the ordinary and extraordinary members and to a Lieutenant-Governor where applicable, such persons, not less than six nor more than twelve in number, as to him may seem expedient, to be members of Council for the purpose of making laws and regulations only; and such persons shall not be entitled to sit or vote at any meeting of Council except at meetings held for such purpose.

And the proviso: not less than one half of the persons so nominated shall be non-official persons, that is, persons who at the date of nomination are not in the civil or military service of the Crown in India; and the seat of any non-official member who accepts office under the Crown in India shall be vacated.

Four things follow, and each is worth a sentence.

They are nominated, not elected. There is no election of any kind under the Act of 1861, and a student who says otherwise has confused it with 1909.

They sit for legislation only. An additional member had no voice in the executive government and could not attend an ordinary meeting of Council. The legislative and executive functions of the same Council are, for the first time, performed by differently composed bodies.

Half must be non-officials, and the definition is precise: not in the civil or military service of the Crown in India. The proviso about vacating the seat on accepting office prevents the category being emptied by appointment.

And it is under this provision that Indians first entered a law-making body in India. The Act does not say so in terms; what it does is create a class of non-official nominated members, and the Governor-General nominated Indians to it from the beginning. That is the fact to give, and the date, 1861, is two hundred and sixty-one years after the Charter of 1600.

Sections 12 to 14

Section 12: an additional member may resign his office to the Governor-General.

Section 13: provision for a vacancy occurring by death, acceptance of office or resignation.

Section 14: no law or regulation made by the Governor-General in Council in accordance with the provisions of the Act shall be invalid by reason only of some informality in the proceedings. That is a validation clause of an ordinary kind, and it matters because the Council's composition varied and its meetings could be challenged.

A worked example

The Legislative Council meets at Calcutta in 1865 to consider a Bill.

• Who may sit? The Governor-General; the five ordinary members under section 3; any extraordinary member; the Lieutenant-Governor of the province where the Council sits, in the case provided for; and the six to twelve additional members nominated under section 10.
• Who may not? An additional member may not attend when the Council meets for executive business, because section 10 confines him to meetings for making laws and regulations.
• Who must the additional members include? At least half non-officials.
• And what happens if a non-official member is appointed to a post under the Crown? His seat is vacated by the proviso to section 10.
• Is any member elected? No. Election arrives in 1909.

What beginners get wrong

"The Act of 1861 introduced elections." It did not. Every member was nominated or appointed. The Act of 1892 introduced a power to make rules for nomination on the recommendation of certain bodies, and the Act of 1909 introduced an elected element.

"Indians were made members of the Council in 1861." More precisely: the Act created a class of non-official nominated additional members for legislative purposes, and Indians were nominated to it. The Act does not mention Indians.

"Additional members took part in the government." They sat for making laws and regulations only, and could not sit or vote at any other meeting of the Council.

"Section 8 is a minor provision." It is the basis of the portfolio system, and therefore of the way every Indian government has transacted business since.

Limits and criticism

Three criticisms, stated in ascending order of importance.

The numbers are small. Six to twelve additional members, of whom at least half non-official, in a body legislating for perhaps two hundred million people.

Nomination is not representation. Members were chosen by the Governor-General, sat during his pleasure so far as their nomination went, and answered to nobody. The non-official half were mostly landholders, princes and merchants selected for their loyalty, and were not in any sense delegates of anybody.

And the Council had no control over the executive. It could not question ministers, could not vote on the budget, and could not initiate legislation on the reserved subjects the next chapter describes. It was a body for passing laws laid before it, and Lord Canning's own description of what was wanted, in the despatch that produced the Act, was a body that would supply local knowledge rather than one that would represent local opinion.

Set against those, the Act did three durable things: it added a legislative element from outside the services, it separated the composition of the legislative from the executive Council, and it began the practice of nominating Indians to a law-making body. Every later step in this half of Module IV is an enlargement of one of the three.

Quick revision

• Indian Councils Act 1861, 24 & 25 Vict. c. 67. Follows 1857 and the Government of India Act 1858.
• s.1: short title. s.2: repeals ss.40, 43, 44, 50, 66, 70 and parts of ss.61 and 64 of the Charter Act 1833 and ss.22, 23, 24 and 26 of the Charter Act 1853, and saves every other enactment about the Councils so far as not repugnant.
• s.3: five ordinary members, three appointed from persons who have served the Crown in India ten years.
• s.5: appointment by the Secretary of State in Council. ss.6, 7: the Governor-General's absence and a nominated President.
• s.8: rules for the more convenient transaction of business: the basis of the portfolio system.
• s.9: the Council assembles where the Governor-General in Council appoints.
• s.10: the Governor-General shall nominate not less than six nor more than twelve additional members for making laws and regulations only, who may not sit or vote at other meetings; not less than one half non-official, meaning not in the civil or military service of the Crown in India; a non-official's seat is vacated on accepting office.
• ss.12 to 14: resignation, vacancies, and a validation clause for informality.
• No election anywhere in the Act.

Test yourself

1. What exactly does section 10 provide? That the Governor-General shall nominate not less than six nor more than twelve persons as members of Council for the purpose of making laws and regulations only, who shall not sit or vote at any other meeting, and that not less than half of them shall be non-official persons, meaning persons not in the civil or military service of the Crown in India, a non-official's seat being vacated if he accepts office under the Crown.

2. Were any members elected under the Act of 1861? No. Every member was appointed or nominated. An elected element was introduced only by the Indian Councils Act 1909.

3. What is the significance of section 8? It authorised the Governor-General to make rules and orders for the more convenient transaction of business in Council, and it is the statutory basis of the portfolio system, under which business is distributed among members by department instead of every question coming before the whole Council.

4. Give the three criticisms of the Act as a step towards representation. The numbers were very small; nomination by the Governor-General is not representation, and the non-officials were selected rather than delegated; and the Council had no control over the executive, no power over the budget and no right to question the government.

5. What did the Act do that lasted? It added a legislative element from outside the services, it distinguished the composition of the Council for legislative business from its composition for executive business, and it began the practice of nominating Indians to a law-making body in India.