The Indian Councils Act 1909: the Morley-Minto Reforms

Sections 2 and 3: the executive councils

Section 2(1): the number of ordinary members of the councils of the Governors of Madras and Bombay shall be such number not exceeding four as the Secretary of State in Council may direct, of whom at least two shall be persons who at the time of appointment have been in the service of the Crown in India for at least twelve years.

Section 2(2): on an equality of votes the Governor or other person presiding has two votes or the casting vote.

Section 3(1): the Governor-General in Council may, with the approval of the Secretary of State in Council, by proclamation create a council in the Bengal Division of the Presidency of Fort William to assist the Lieutenant-Governor in the executive government of the province, providing for the number, not exceeding four, and the qualifications of its members, for temporary and acting members, and for the procedure on a difference of opinion or an equality of votes.

Section 3(2): a like council may be created in any other province under a Lieutenant-Governor, provided that a draft proclamation is laid before each House of Parliament for not less than sixty days during the session, and if an address is presented against it by either House no further proceedings are to be taken on that draft.

Section 3(3): where such a proclamation has been made, the Lieutenant-Governor may with the Governor-General in Council's consent make rules for the more convenient transaction of business, which is the portfolio system of section 8 of the Act of 1861 extended to the provinces.

Section 3(4): every member of such a council is appointed by the Governor-General with the approval of His Majesty, and is as such also a member of the Lieutenant-Governor's Legislative Council, in addition to the nominated and elected members.

Section 3(2)'s laying procedure is worth noticing on its own account. It is an early example of a delegated instrument being subject to a negative resolution of Parliament, and it shows how carefully the extension of executive councils to the provinces was guarded.

Section 4: the Vice-President

The Governor-General, the Governors of Madras and Bombay and every Lieutenant-Governor shall appoint a member of their respective councils to be Vice-President, who for the purpose of temporarily holding and executing the office and of presiding at meetings in the absence of the head is deemed the senior member and highest in rank.

A small provision with a large consequence: for the first time an Indian council has a presiding officer other than the head of the government, and the office of a presiding officer of an Indian legislature begins here.

Section 5: discussion, resolutions and questions

Notwithstanding anything in the Act of 1861, the Governor-General in Council, the Governors in Council of Madras and Bombay and every Lieutenant-Governor shall make rules authorising at any meeting of their legislative councils:

• the discussion of the annual financial statement of the Governor-General in Council or of the local government; and
• the discussion of any matter of general public interest; and
• the asking of questions,

under such conditions and restrictions as the rules prescribe.

Compare section 2 of the Act of 1892. Three changes are visible and each matters.

"Shall make rules", not "may". The concession is now obligatory.

"Any matter of general public interest" is new, and it is the foundation of the power to move resolutions, which the rules made under the section provided for, together with the right to divide the council upon them. That is the vote the Act of 1892 withheld.

And section 5(2) allows the rules to provide for a member of the council to preside at such a discussion in place of the Governor-General, Governor or Lieutenant-Governor and of any Vice-President.

Section 5(3) keeps control where it had always been: rules made by a Governor or Lieutenant-Governor are subject to the sanction of the Governor-General in Council, rules made by the Governor-General in Council to the sanction of the Secretary of State in Council, and in neither case may the rules be altered or amended by the legislative council they govern.

Section 6: the regulations, and where the separate electorates are

The Governor-General in Council shall, subject to the approval of the Secretary of State in Council, make regulations as to the conditions under which and the manner in which persons resident in India may be nominated or elected, as to the qualifications for being, and for being nominated or elected, a member, and as to any other matter for which regulations are authorised; and such regulations shall not be subject to alteration or amendment by the Legislative Council of the Governor-General.

This is the section a student must understand, because the most famous feature of the Morley-Minto reforms is not in the Act at all.

The franchise, the constituencies, the qualifications and the separate electorates for Muslims were provided by the regulations made under section 6, not by the Act. The Act is, in the words of the editors of the digitised text, skeletal, and it was operationalised by rules and regulations that spelt out the details.

So the accurate sentence is: the Act introduced the elective principle; the regulations made under section 6 introduced separate electorates. A student who says the Act introduced separate electorates has not read the Act, and an examiner who knows the difference will notice.

Sections 7 and 8 deal with proclamations and regulations and with the short title and construction with the Acts of 1861 and 1892.

A worked example

The Imperial Legislative Council in 1911.

• Who sits? Ordinary members of the Governor-General's Executive Council; additional members nominated; and additional members elected under the regulations, the aggregate not exceeding the First Schedule number.
• Who elected them? Constituencies created by the regulations: landholders, Muslims voting separately, chambers of commerce, municipalities and district boards, and universities. The Act names none of these.
• May a member move a resolution about the salt tax? Yes, under the rules made under section 5, which permit discussion of any matter of general public interest, and he may divide the Council upon it.
• Is the Government bound by the vote? No. The resolution is a recommendation; the executive is not responsible to the Council and cannot be turned out by it.
• May the Council amend the regulations that created the constituencies? No: section 6 forbids it.

That last pair is the whole of the Morley-Minto reforms in two answers.

What beginners get wrong

"The Act introduced separate electorates." The regulations made under section 6 did. The Act introduced the elective principle.

"The Act made the executive responsible to the legislature." It did not. Members could question, discuss and resolve; they could not remove a government or defeat a budget. Responsible government at the provincial level begins, partially, in 1919.

"An Indian was appointed to the Viceroy's Executive Council by the Act." The Act enlarged and provided for executive councils; the appointment of the first Indian member of the Governor-General's Executive Council was made under the existing powers at the same period. Describe it as a reform of the same moment, not as a section of the Act.

"The Act gave the councils control of the budget." It required rules authorising discussion of the annual financial statement and of any matter of general public interest, and the rules allowed resolutions and divisions. A vote on a resolution is not control of expenditure.

Limits and criticism

The standard criticisms are well founded and a student should give them with the counter-argument.

The elected element was small, the franchise narrow and the qualifications high, so the electorate was a fraction of a fraction of the population.

Separate electorates divided the electorate by religion, and Indian nationalist opinion, which had welcomed the elective principle, objected to them at once. That objection is the beginning of a controversy that runs through the Act of 1919, the Communal Award and the Poona Pact, and into the Constituent Assembly, which rejected separate electorates.

And the reforms were not intended to lead where they led. Lord Morley told the House of Lords that if it could be said that this chapter of reforms led directly or necessarily to the establishment of a parliamentary system in India he would have nothing to do with it, and British officials described the councils as durbars rather than parliaments.

Against that, the change made in section 1(1) is irreversible in principle. Once some members of a legislature are elected, the questions that follow, by whom, for what constituencies, with what powers, and whether the executive should answer to them, cannot be permanently avoided. The Act of 1919 is the next answer to them and the Act of 1935 the one after.

Quick revision

• Indian Councils Act 1909, 9 Edw. VII c. 4, the Morley-Minto reforms. Eight sections and two schedules.
• s.1(1): members of the legislative councils, instead of being all nominated, shall include members nominated and also members elected under regulations. s.1(2): numbers, quorum, term and vacancies by regulation, subject to the First Schedule ceilings.
• s.2: ordinary members of the Madras and Bombay councils not exceeding four, at least two with twelve years' service; casting vote to the presiding officer.
• s.3: executive councils for Lieutenant-Governors by proclamation, Bengal expressly and others after a draft laid before Parliament for sixty days; rules for convenient transaction of business; members appointed by the Governor-General with His Majesty's approval and sitting also in the legislative council.
• s.4: a Vice-President of each council.
• s.5: rules shall authorise discussion of the annual financial statement, of any matter of general public interest and the asking of questions; rules sanctioned above and not amendable by the council.
• s.6: regulations by the Governor-General in Council with the Secretary of State's approval as to nomination, election and qualifications, not amendable by the council. The separate electorates are here, not in the Act.
• ss.7 and 8: proclamations and regulations; short title and construction with the Acts of 1861 and 1892.

Test yourself

1. What does section 1(1) provide, and why is it the important section? That the additional members of the legislative councils, instead of being all nominated as under the Acts of 1861 and 1892, shall include members nominated and also members elected in accordance with regulations made under the Act. It is important because it introduces the elective principle into Indian legislatures for the first time.

2. Where were the separate electorates provided for? In the regulations made under section 6 by the Governor-General in Council with the approval of the Secretary of State in Council, not in the Act itself. The Act was skeletal and left the franchise, the constituencies and the qualifications to regulations.

3. How does section 5 differ from section 2 of the Act of 1892? Section 2 of the Act of 1892 said the Governor-General in Council may make rules authorising discussion of the annual financial statement and the asking of questions. Section 5 of the Act of 1909 says the authorities shall make such rules, and adds the discussion of any matter of general public interest, which is the foundation of the power to move resolutions and to divide the council upon them.

4. What could an elected member of 1911 not do? He could not defeat the budget, could not remove the Government, could not amend the regulations that created his own constituency, and could not make his resolution binding on the executive.

5. What did Lord Morley say about where the reforms led? That if it could be said that this chapter of reforms led directly or necessarily to the establishment of a parliamentary system in India, he would have nothing at all to do with it.