The Indian Councils Act 1892

Section 3: a declaration about section 22

Section 3 declares that in section 22 of the Indian Councils Act 1861 it was and is intended that the words "Indian territories now under the dominion of Her Majesty" should have the meaning the section states.

That is a drafting repair rather than a reform, and a student need not learn its detail. What it shows is that the extent of the Indian legislature's territorial power had become uncertain, which is a recurring theme of this module.

Section 4: additional members

Section 4 repeals sections 13 and 32 of the Act of 1861, which dealt with vacancies among additional members at the centre and in the provinces, and re-enacts the provision in a form that allows a vacancy to be filled where a member is absent from India or unable to attend to the duties of his office for two consecutive months.

The Act also increased the number of additional members: at the centre the maximum rose from twelve to sixteen, and the provincial councils were enlarged in the same way. Those numbers were set by the Act and by the rules made under it.

The recommendation provision: what 1892 really did

This is the provision most often described inaccurately, so it is worth being exact.

The Act empowered the making of rules for nominating members, and the rules made under it provided that certain of the non-official seats should be filled by the Governor-General or the Governor on the recommendation of specified bodies: municipal corporations, district boards, universities, chambers of commerce, and groups of landholders.

So the sequence is: a body recommends a name; the Governor-General or Governor nominates him. The member owes his seat to the nomination, not to the recommendation.

That is not an election, and the Act contains no election. A student who writes that the Act of 1892 introduced elections is wrong, and it is a common error because the recommendation system looks like one and was in practice the beginning of one. The correct sentence is that the Act introduced the principle of representation by recommendation, and that the elective principle arrives with the Act of 1909.

Sections 5 and 6

Section 5: the local legislature of any province in India may from time to time, by Acts passed under and subject to the provisions of the Indian Councils Act 1861, and with the previous sanction of the Governor-General but not otherwise, repeal or amend as to that province any law or regulation made either before or after the passing of the Act by any authority in India.

That is a real enlargement of provincial power. Before it, a provincial legislature could make laws for the peace and good government of its province but its power to touch existing all-India legislation was doubtful. Section 5 lets it amend or repeal, for its own province, any law made by any authority in India, with the Governor-General's previous sanction.

Section 6 defines "local legislature" as the Governor in Council of Madras and Bombay for the purpose of making laws and regulations, and the corresponding bodies elsewhere.

Section 8 is the short title and provides that the Act and the Indian Councils Act 1861 may be cited together.

A worked example

The Bombay Legislative Council in 1895.

• May a member ask the Government how much was spent on the police? Yes, if the rules made under section 2 allow it, in the form and subject to the restrictions the rules prescribe, and he may not ask a supplementary.
• May he move that the sum be reduced? No. He may discuss the annual financial statement; he may not vote on it or move an amendment. That comes in 1909.
• How did he get his seat? By nomination by the Governor, in his case on the recommendation of a municipal corporation under the rules.
• May the Council amend, for Bombay, an all-India Act passed at Calcutta? Yes, under section 5, with the previous sanction of the Governor-General, and not otherwise.

What beginners get wrong

"The Act of 1892 introduced elections." It did not. It permitted rules for nomination on the recommendation of specified bodies. The elective principle is 1909.

"It gave the councils control of the budget." It permitted rules authorising the discussion of the annual financial statement. No vote, no amendment, no division.

"Members could question ministers freely." They could ask questions under the conditions and restrictions the rules prescribed, and the rules did not allow supplementaries.

"Section 5 made the provinces autonomous." It allowed a local legislature to repeal or amend, for its own province, a law made by any authority in India, with the previous sanction of the Governor-General but not otherwise.

Limits and criticism

The Act is a small step and the interesting question is why it was taken at all.

What produced it: twelve years of pressure from the Indian National Congress, founded in 1885, and from British Liberal opinion, for a legislature with an elected element and some control over the executive. What was given was discussion of the budget, questions under restriction, larger councils and nomination on recommendation.

Why it disappointed: nothing in the Act creates a right, everything depends on rules made by the Government, there is no vote on any part of the budget, and there is no election.

Why it mattered anyway: two of the three great functions of a legislature, examining expenditure and questioning the executive, entered Indian practice here, in however restricted a form; and the recommendation system taught the bodies that recommended, the municipalities, the universities and the chambers, to think of themselves as constituencies. When the elective principle arrived in 1909 it was built on exactly those bodies.

Quick revision

• Indian Councils Act 1892, 55 & 56 Vict. c. 14.
• s.2: the Governor-General in Council may make rules authorising, at a meeting for making laws, the discussion of the annual financial statement and the asking of questions, under prescribed conditions and restrictions. No vote and no amendment.
• Numbers of additional members increased; rules permitted nomination on the recommendation of municipalities, district boards, universities, chambers of commerce and landholders.
• s.3: declaratory, about the meaning of "Indian territories" in s.22 of the Act of 1861.
• s.4: repeals ss.13 and 32 of the Act of 1861 and re-enacts the filling of vacancies where a member is absent or unable to attend for two consecutive months.
• s.5: a local legislature may, with the previous sanction of the Governor-General but not otherwise, repeal or amend as to its province any law made by any authority in India.
• s.6: defines "local legislature". s.8: short title and collective citation.
• No election anywhere in the Act.

Test yourself

1. What exactly did section 2 permit? The making of rules by the Governor-General in Council authorising, at meetings for the purpose of making laws and regulations, the discussion of the annual financial statement and the asking of questions, under such conditions and restrictions as the rules might prescribe.

2. Did the Act of 1892 introduce elections? Explain. No. It allowed rules providing for the nomination of certain non-official members on the recommendation of specified bodies such as municipal corporations, district boards, universities and chambers of commerce. The member owed his seat to nomination, and the elective principle was introduced only by the Act of 1909.

3. What does section 5 allow a provincial legislature to do? To repeal or amend, as to its own province, any law or regulation made before or after the Act by any authority in India, by an Act passed under the Indian Councils Act 1861 and with the previous sanction of the Governor-General, but not otherwise.

4. Give the three limits on the concessions in section 2. That they take effect only through rules made by the Government; that the budget could be discussed but not voted on or amended; and that questions were subject to conditions and restrictions in the rules, which did not permit supplementaries.

5. Why did the Act matter despite its limits? Because the examination of expenditure and the questioning of the executive, two of the great functions of a legislature, entered Indian practice through it, and because the bodies that recommended members became, in effect, the constituencies on which the elective system of 1909 was built.