The Legislature Begins: the Charter of 1600
Chapter Fifty-Six
Syllabus topic 4.1.1, "Charter of 1600"
Pages 293 to 296 of 491
In one line
The Indian legislature begins as one clause in a trading charter, giving a company power to make rules for its own servants provided they were reasonable and not repugnant to the laws of England.
In the wording a student can write in an exam: the power to legislate for what became British India originated in the Charter of 31 December 1600, which authorised the Governor and Company of Merchants of London trading into the East Indies, in their general assembly, to make laws, constitutions, orders and ordinances for the good government of the Company and its servants and to impose imprisonments, fines and amerciaments for their breach, subject to the condition that they be reasonable and not contrary or repugnant to the laws, statutes or customs of the realm.
Why the same charter twice
MU's syllabus asks for the Charter of 1600 in topic 1.1.1, as the beginning of the administration of justice, and again in topic 4.1.1, as the beginning of the legislature. That is not an oversight. The charter granted both powers in the same breath, and the two histories separate only slowly.
The earlier chapter asked: who could be judged, and by whom? This one asks: who could make law, for whom, and subject to what limit?
The three questions, answered from the charter
Who could make law? The Governor and Company in their general assembly, that is, the shareholders meeting in London. Not the Governor alone, not the officers in India, and not any body sitting in the East.
For whom? For the Company and its servants. The power was one of internal discipline: an ordinance could bind a factor at Surat because he was the Company's employee, and it could bind nobody else.
Subject to what limit? The charter states it in one clause, and the clause is the ancestor of every restriction on Indian legislation for the next three hundred and forty-seven years: the laws, orders, constitutions, ordinances, imprisonments, fines and amerciaments were to be "reasonable, and not contrary or repugnant to the Laws, Statutes, or Customs of this our Realm."
The repugnancy rule, traced to 1950
The single most useful thing a student can do with this topic is follow that clause forward, because it appears in almost every instrument in this module.
| Instrument | The restriction |
|---|---|
| Charter of 1600 | Laws to be reasonable and not repugnant to the laws of England |
| Regulating Act 1773, s.36 | Rules, ordinances and regulations not repugnant to the laws of the realm, and void until registered in the Supreme Court |
| Settlement Act 1781, s.23 | Regulations for the provincial courts, without registration, but subject to disallowance by His Majesty in Council within two years |
| Charter Act 1833, s.43 | Power to make laws for all persons and all courts, subject to the restrictions in the Act |
| Indian Councils Act 1861, s.22 | Laws for all persons, British or native, and all courts, but subject to the reserved subjects in s.22 and to previous sanction under s.43 |
| Government of India Act 1935, ss.99 to 108 | Distribution of powers between Federation and Provinces, with a rule of repugnancy |
| Constitution of India, art. 254 | Repugnancy between a law of Parliament and a law of a State legislature |
The Legislature Begins: the Charter of 1600
Seven instruments, three and a half centuries, and the same idea: an Indian legislature legislates under a superior law, and where it conflicts with that law it fails. A student who can state that continuity has understood Module IV before reading the rest of it.
What the charter did not give
No power to legislate for India. The Company could bind its own people. Every inhabitant of Surat, Madras or Bengal was outside the power entirely, and would remain so until the Company acquired territory and, with it, subjects.
No legislature in India. The general assembly sat in London. Law-making in India begins with the powers exercised by the Presidents and Councils under the later charters, and it acquires a statutory footing only with section 36 of the Regulating Act.
No separation from the executive. The body that made the ordinances was the body that governed the Company. Module III's chapter on separation of powers begins its "before independence" list here.
A worked example
An ordinance of the general assembly in London in 1620 forbidding private trade by the Company's servants, on pain of a fine.
- Valid? Yes, if reasonable and not repugnant to the laws of England. It regulates the Company's own servants, which is what the power is for.
- Binding on a Dutch merchant at Surat? No. He is not the Company's servant, and the power reaches nobody else.
- Binding on an Indian weaver contracting with the Company? No, for the same reason.
- What if it purported to make private trade a felony punishable by death? Void: the punishments authorised are imprisonments, fines and amerciaments, and a capital penalty would in any case be repugnant to the laws of England as administered by the Company's own charter.
Now compare the position after section 22 of the Indian Councils Act 1861, under which the Governor-General in Council could make laws "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 Indian territories. The distance between the two is the subject of the next five chapters.
What beginners get wrong
"The Charter of 1600 created the Indian legislature." It created a power in a company's general assembly in London to make rules for its own servants. A legislature in India, making law for the inhabitants of India, arrives in stages between 1773 and 1833.
The Legislature Begins: the Charter of 1600
"The repugnancy rule meant English law applied in India." It meant a Company rule that contradicted English law was void. Whether English law applied to the inhabitants of India is a different question, answered differently in the Presidency Towns and in the mofussil, as Modules I and II set out.
"The Company legislated for India from 1600." It legislated for itself. The first laws for the inhabitants of a territory come after the grant of the Diwani in 1765 and the plan of 1772, and the first Indian legislative power recognised by Parliament is section 36 of the Regulating Act in 1773.
Limits and criticism
The point worth making at the start of Module IV is about who was consulted, and it can be made without rhetoric because the dates do the work.
A power to make law for the inhabitants of India was granted in 1600 by an English Queen to an English corporation. It was enlarged by an English Parliament in 1773, 1784, 1813, 1833 and 1853. It was exercised in India from 1773 by a Governor-General and Council appointed from England.
The first Indians to sit in any law-making body in India took their seats under section 10 of the Indian Councils Act 1861, as nominated additional members, two hundred and sixty-one years after the Charter of 1600. The first elected element arrives with the Indian Councils Act 1909. And a legislature with a majority of elected members at the centre arrives with the Government of India Act 1919.
That sequence is the spine of this half of Module IV, and every chapter in it is a step along it.
Quick revision
- Charter of 31 December 1600: the Governor and Company in general assembly may make laws, constitutions, orders and ordinances for the good government of the Company and its servants, with imprisonments, fines and amerciaments.
- The limit: reasonable, and not contrary or repugnant to the laws, statutes or customs of England.
- The power reached the Company's servants only; the assembly sat in London; and the body that legislated also governed.
- The repugnancy idea runs forward through s.36 of the Regulating Act, s.23 of the Settlement Act, s.43 of the Charter Act 1833, s.22 of the Indian Councils Act 1861, ss.99 to 108 of the Act of 1935 and article 254 of the Constitution.
- First Indians in a law-making body: 1861, as nominated members under s.10. First elected element: 1909.
The Legislature Begins: the Charter of 1600
Test yourself
1. Who could make law under the Charter of 1600, for whom, and subject to what condition? The Governor and Company of Merchants of London trading into the East Indies, in their general assembly, could make laws, constitutions, orders and ordinances for the good government of the Company and its servants, with imprisonments, fines and amerciaments for breach, provided they were reasonable and not contrary or repugnant to the laws, statutes or customs of England.
2. Trace the repugnancy rule through four later instruments. Section 36 of the Regulating Act 1773 required the Council's rules not to be repugnant to the laws of the realm; section 43 of the Charter Act 1833 gave a general power subject to the Act's restrictions; section 22 of the Indian Councils Act 1861 gave power over all persons and courts subject to reserved subjects; and article 254 of the Constitution is a repugnancy provision between Union and State laws.
3. Why does MU's syllabus name the Charter of 1600 twice? Because it granted both judicial and legislative powers in the same clause, so topic 1.1.1 reads it for the administration of justice and topic 4.1.1 for the legislature.
4. When did Indians first sit in a law-making body in India, and how? In 1861, as additional members nominated by the Governor-General under section 10 of the Indian Councils Act 1861, for the purpose of making laws and regulations only. An elected element came only with the Indian Councils Act 1909.
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.