The Indian Councils Act 1861: Legislation Returns to the Provinces
Chapter Sixty-One
Syllabus topic 4.1.3, "Indian Council Act of 1861, 1892 & 1909"
Pages 317 to 321 of 491
In one line
The Act of 1833 had taken the power to legislate away from Madras and Bombay; the Act of 1861 gave it back, and allowed new provincial legislatures to be created by proclamation.
In the wording a student can write in an exam: sections 28 to 43 of the Indian Councils Act 1861 restored to the Governors in Council of Madras and Bombay the power to make laws and regulations for the peace and good government of their Presidencies, with additional members nominated for the purpose and holding office for two years, subject to the Governor-General's assent and to the reserved subjects in section 43; and sections 44 to 49 empowered the Governor-General in Council by proclamation to extend the provisions of the Act to Bengal, the North-Western Provinces and the Punjab and to constitute new provinces, so that legislation in India was thereafter carried on at two levels.
The restoration
Section 28 empowers the Governors of Madras and Bombay to make rules and orders for the conduct of business, and sections 29 and 30 provide for summoning additional members and for their tenure: additional members appointed for two years.
Sections 35 to 38 are the procedural machinery, and they mirror sections 16 to 19 for the Governor-General's Council: the Governor-General in Council appoints the time and place of the first meeting; the Governor appoints subsequent times and places; rules and orders are made before the first meeting; and no business is transacted without the required quorum.
Sections 39 to 41 are assent and disallowance in two stages, and this is where the provincial position differs from the central one. A law made by a provincial Council is presented to the Governor; the Governor transmits an authentic copy of every law he has assented to for the Governor-General's assent; and when the Governor-General has assented, he transmits a copy to the Secretary of State, so that Her Majesty may disallow.
Three assents and one disallowance, and a provincial law was not safe until all four steps were passed.
Section 42 gives the power itself: the Governor in Council of each Presidency shall have power, at meetings for the purpose of making laws and regulations, to make laws for the peace and good government of the Presidency.
Section 43, worked in the last chapter, is the restriction: no regulation on the reserved subjects, and no taking such a Bill into consideration, without the Governor-General's previous sanction.
Compare that with section 22, which gives the Governor-General in Council power over all persons, all courts and all places. The difference between the two formulas, "for the peace and good government of the Presidency" and "for all persons and all courts and all places and things", is the beginning of a distribution of legislative power in India, and the Government of India Act 1935's three Lists are the same idea grown up.
The Indian Councils Act 1861: Legislation Returns to the Provinces
Extending the Act by proclamation
Section 44: the Governor-General in Council, so soon as it appears to him expedient, shall by proclamation extend the provisions of the Act to the Bengal Division of the Presidency of Fort William, and afterwards to the North-Western Provinces and to the Punjab.
Section 45: whenever such a proclamation has been issued, the Lieutenant-Governor of the division or territory concerned shall have a Council constituted as the Act provides.
Section 46: the Governor-General may by proclamation constitute new provinces for the purposes of the Act, with the like provisions, and appoint Lieutenant-Governors of them.
Section 48: every such Lieutenant-Governor in Council may make laws for the peace and good government of his division, province or territory.
Section 49 is the proviso limiting what such a proclamation may do.
This is how the map of Indian legislatures was drawn. A province did not need an Act of Parliament to acquire a legislature; the Governor-General in Council could create one by proclamation, and did, for Bengal in 1862, the North-Western Provinces in 1886 and the Punjab in 1897.
Sections 50 to 53
Sections 50 and 51 deal with a vacancy in the office of Governor-General when no provisional successor is in India, and who is to hold and execute the office.
Section 52 is a saving: nothing in the Act shall be held to derogate from or interfere with, except as expressly provided, the rights and authorities it does not touch.
Section 53 is an interpretation clause about the meaning of acts done by the Governor-General or the Governors "in Council".
What "two levels" meant, and did not mean
A student should be careful here, because the arrangement looks federal and is not.
It is not a federation. There is no distribution of subjects between the centre and the provinces. The Governor-General in Council can legislate on everything, including everything a provincial legislature can legislate on, and by section 22 its laws control and supersede any repugnant law.
The provincial power is subordinate in three ways: the reserved subjects need the Governor-General's previous sanction under section 43; every law needs his assent under section 40; and a provincial legislature exists only where the Act has been extended by proclamation.
But it is the beginning of the idea. From 1861 there are law-making bodies at two levels in India, with a rule about which prevails. That is the seed of section 22's supersession, of the Government of India Act 1919's division of subjects, of the three Lists in the Act of 1935 and of article 246 of the Constitution.
The Indian Councils Act 1861: Legislation Returns to the Provinces
A worked example
A Bill in the Bombay Legislative Council in 1870 to regulate the sale of intoxicating liquor.
- Is it within section 42? Yes: a law for the peace and good government of the Presidency.
- Is it within section 43? Excise is not one of the reserved subjects, so no previous sanction is needed. Had the Bill touched the customs duties, the currency, the penal code or religion, the Governor-General's previous sanction would have been needed before the Council could even consider it.
- Procedure: the time and place under sections 35 and 36, rules under section 37, quorum under section 38.
- Assent: the Governor under section 39, then the Governor-General under section 40, then transmission to the Secretary of State under section 41, with Her Majesty's power to disallow.
- And if the Governor-General in Council afterwards makes an all-India law on the same subject? By section 22 the central law controls and supersedes the provincial one so far as they are repugnant.
What beginners get wrong
"The Act of 1861 created provincial legislatures." It restored them to Madras and Bombay, which had lost them under the Charter Act of 1833, and it enabled others to be created by proclamation for Bengal, the North-Western Provinces and the Punjab.
"India became federal in 1861." It did not. There was no distribution of subjects, the central legislature could legislate on anything, and its laws superseded repugnant provincial laws.
"A provincial law needed only the Governor's assent." It needed the Governor's assent, then the Governor-General's, then transmission to the Secretary of State, with the Crown's power of disallowance.
"Provincial additional members held office at pleasure." Section 30 provides that additional members were appointed for two years.
Limits and criticism
The provincial half of the Act of 1861 is usually praised as decentralisation and criticised as inadequate, and both are right for different reasons.
It was real decentralisation of a kind. A Bill about Bombay could be considered by a body sitting in Bombay containing men who knew Bombay, instead of by a Council at Calcutta. Lord Canning's argument for it, quoted by Cowell, was exactly that the central legislature could not know the local circumstances of the provinces it legislated for.
And it was not representation. The additional members of a provincial Council were nominated by the Governor exactly as at the centre, half of them non-official, none of them elected, for two-year terms. A body of nominated notables meeting a few times a year to pass the Bills the Government lays before it is a consultative device, not a legislature in the sense a student will meet in constitutional law.
The Indian Councils Act 1861: Legislation Returns to the Provinces
And the assent machinery could be, and was, used. Four steps between a Bill's passage and its safety, three of them controlled by officers appointed in England, is a great deal of supervision for a law about excise in Bombay.
Quick revision
- ss.28 to 30: rules of business for Madras and Bombay; additional members appointed for two years.
- ss.35 to 38: time and place of meetings, rules, and quorum.
- ss.39 to 41: assent of the Governor, then of the Governor-General, then copy to the Secretary of State with Her Majesty's power of disallowance.
- s.42: power to make laws for the peace and good government of the Presidency.
- s.43: reserved subjects need the Governor-General's previous sanction.
- ss.44 to 49: the Governor-General in Council may by proclamation extend the Act to Bengal, the North-Western Provinces and the Punjab, constitute new provinces, and give their Lieutenant-Governors Councils that may legislate for the peace and good government of the territory.
- Not a federation: no distribution of subjects, and by s.22 central laws control and supersede repugnant provincial laws.
Test yourself
1. What had happened to the legislative powers of Madras and Bombay before 1861, and what did the Act do about it? The Charter Act of 1833 had taken their legislative powers away and vested legislation exclusively in the Governor-General in Council. The Indian Councils Act 1861 restored to their Governors in Council the power to make laws for the peace and good government of their Presidencies.
2. Describe the assent procedure for a provincial law. The law was presented to the Governor for his assent; the Governor transmitted an authentic copy of every law he had assented to for the Governor-General's assent; and on the Governor-General's assent a copy went to the Secretary of State, Her Majesty having power to disallow.
3. How did new provincial legislatures come into existence? By proclamation of the Governor-General in Council under sections 44 to 46, which extended the Act to the Bengal Division, the North-Western Provinces and the Punjab and allowed new provinces to be constituted, their Lieutenant-Governors in Council being empowered by section 48 to make laws for the peace and good government of the territory.
4. Why is the arrangement not federal? Because there was no distribution of subjects between the centre and the provinces, the Governor-General in Council could legislate on everything, the provincial power was limited to the peace and good government of the province and subject to previous sanction on the reserved subjects, and central laws superseded repugnant provincial ones under section 22.
The Indian Councils Act 1861: Legislation Returns to the Provinces
5. What does the arrangement of 1861 lead to? Legislation at two levels with a rule of supersession, which is the seed of the division of subjects in the Government of India Act 1919, the three Lists of the Act of 1935 and article 246 of the Constitution.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.