JAMIA MILLIA ISLAMIA UNIVERSITY

SESSION- 2020-21

LEGAL AND CONSTITUTIONAL HISTORY

ASSIGNMENT

Topic: Passing of the Indian Council Act, 1861, 1892

SUBMITTED TO: SUBMITTEDBY:

DR. NOORJAHAN MOMIN SHIVAM KUMAR PANDEY
ROLL NO.-60/REGULAR
SEM: 3rd/ B.A.LL.B (Hons.)

FACULTY OF LAW
JAMIA MILLIA ISLAMIA UNIVERSITY
NEW DELHI – 110025

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 Passing of the Indian Council Act, 1861, 1892

After the great revolt of 1857 the British government felt the necessity of seeking the
cooperation of Indians in administration of their country, and in pursuance of this policy the
British government introduced three acts and three acts enacted by the British parliament in
1861, 1892 and 1909. All these acts actually are called as Indian Council Act of respective
years. So thus, the Indian council act of 1861 and 1892 are an important landmark in
constitutional and political history of India.

Indian Council Act, 18611

For the administrative convenience, the British had divided India into provinces; three of
which -Bengal, Madras, and Bombay were known as Presidencies. The Presidencies were
administered by a Governor and his three Executive Councils, who were appointed by the
Crown. The Presidency Governments possessed more rights and powers than other provinces.
Other provinces were administered by Lieutenant Governors and Chief Commissioners
appointed by the Governor-General. This act of 1861 introduced representative institution in
Indian political forum by the associating Indians with the law-making process and thus
provided that the viceroy would nominate some Indians as non-official member of his
extended council and in 1862 finally Lord Cunning nominated three Indians to his legislative
councils. These were the First Raja of Benares, The Maharaja of Patiala and Dinkar Rao. So
through these act the first thing which the British introduced or rather started is introducing
representative institution which basically talked about associating with Indians so that Indians
get a chance to be the member of these association or the council so as to enable them to play
a important role in making the law and law making process. The Governor-General was
authorized to add to his Executive Council between six and twelve members of whom at least
half had to be non-officials who could be Indian or English. Now, there were two kinds of
members- one official members who were basically Britishers having all the legislative
powers, whereas the other were the Unofficial members who were the nominated Indian
members who were nothing more than a symbol of Indian participation. However, The
Imperial Legislative Council possessed no real powers and should not be seen as a sort of
elementary or weak parliament. It was merely an advisory body which could not discuss any
important measure, and no financial measures at all, without the previous approval of the
Government. No bill passed by Legislative Council could become an Act until it was
approved by the Governor-General. The Secretary of State could disallow any of its Acts.
1
Short title as conferred by Section 1 of the Act.

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Thus, the only important function of the Legislative Council was to ditto official measures
and give them the final look of having been passed by a legislative body. The Imperial
Legislative Council had no control over the budget. It could not discuss the notions of the
administration; the members could not even ask questions about them. The Legislative
Council had no control over the executive. However, in a way, the Act of 1861 marked the
turning of the tide of centralization as it laid down that legislative councils similar to that of
the centre should be established first in Bombay, Madras, and Bengal and then in other
provinces.2 It thus reversed the centralising tendency which started with Regulating act of
1773. The 1861 act restored the legislative power taken away by the Charter Act of 1833. The
legislative council at Calcutta was given extensive authority to pass laws for British India as a
whole while the legislative councils at Bombay and Madras were given the power to make
laws for the “Peace and good Government” of their respective presidencies. The governor-
was given the power to create new provinces for legislative purposes. He also could appoint
Lt. Governors for the same.3 The Secretary of State for India at the time the Act was passed,
Sir Charles Wood, believed that the act was of immense importance: “the act is a great
experiment. That everything is changing in India is obvious enough, and that the old
autocratic government cannot stand unmodified is indisputable.” 4 And with this act they came
up with the new feature that they would support the process of decentralisation by restoring
all the legislative powers of Bombay as well as of Madras presidency which was way back
taken away from them with the Regulating act of 1773. However, from India’s point of view
the act did little to improve the influence of Indians in the legislative council. The Governor
General had also the veto power over the Provincial legislation as no laws could be deemed
to be valid unless assented to by the Governor General. 5Also, it could not address the
centralising tendency evident in every field in India, of the British. The evil of extreme
centralization was most obvious in the field of finance. The revenues from all over the
country and from different sources were gathered at the centre and then distributed by it to
the provincial governments. The Central Government exercised authoritarian control over the
smallest details of provincial expenditure. But this system proved quite wasteful in practice.
It was not possible for the Central Government to supervise the efficient collection of
revenues by a provincial government or to keep adequate check over its expenditure.

2
Indian Councils Act, 1861 Preamble Also section 44.
3
“History of State Legislature”, Tamilnadu State Legislative Assembly, Govt. of Tamilnadu, Chennai. Retrieved
11 February 2010.
4
Sen, S.N. (2006), History Modern India, New Delhi: Newage International. P. 110. ISBN 81-224-1774-4.
5
Indian Councils Act, 1861 Section 40

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However, Financial difficulties led the Government to further decentralize administration by
promoting local government through municipalities and district boards. Local bodies were
first formed between 1864 and 1868, but almost in every case, they consisted of nominated
members and were presided over by the District Magistrates. Further, in fact, the local bodies
did not represent local self-government at all nor did the intelligent Indians accept them as
such. The Indians looked upon them as instruments for the extraction of additional taxes from
the people. Moving forward, this act also provided for the establishment of a new legislative
council for Bengal, North -western frontier provinces and Punjab which were established
respectively in 1862, 1866, and 1897. This was a very important development in India which
provided establishment for a new legislative councils in Bengal, North-Western Frontier
Provinces as well as Punjab, who got their own legislative council with their own powers
which was a deliberately executed by the British to make Indians have ‘’we feeling’’ with the
British Rule and Administration of India. IT empowered the viceroy to make rules and orders
for more convenient transaction of businesses in the council. It was this act of Parliament of
the United Kingdom that transformed the Viceroy of India’s executive council into a cabinet
run on the “portfolio system’’6 in which a member of the viceroy council was made in-charge
of one or more department of government. It empowered the viceroy to make rules and orders
who was authorised to issue final orders on behalf of the council. It was from here where the
todays portfolio system in post-colonial India finds its origin in. Further it empowered the
viceroy to issue ordinances, without the concurrence of the legislative council, during any
emergency the life of which was not more than 6 months.7

so, in a way we can realise that the democratic process was already begun with the
introduction of this act in India. However, The Indian members of the Legislative Council
were few in number and were not elected by the Indian people, but rather were nominated by
the Governor-General whose choice invariably fell on princes and their ministers, big
zamindars, big merchants, or retired senior government officials. Also, The Government of
India, however, had the - concurrent power of legislation and all the laws passed by it could
supersede the laws passed by provincial Governments. 8 Also, under many Acts of the Indian
Legislature the Central Government had also the rule-making power.9

Indian Council Act, 1892

6
Encyclopedia Britannica article concerning this Act.
7
Indian Councils Act, 1861 Section 23
8
Indian Councils Act, 1861 section: 22.
9
For example Act XVIII of 1861, Act IX and XXI of 1869.

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 As a constitutional reforms policy, from 1885 to 1892, the nationalist leaders and the
congress demanded the expansion and reform of the Legislative Councils both at centre and
provincial level. They also demanded that the members of the councils should be directly
elected by the people. They raised the slogan, “No taxation without representation’’. later on,
they put forward the claim of a raj or a self-government within the British empire. The
agitations were carried on through pamphlets, newspapers and speech, where arguments were
made, critiquing specific issues on which reforms were sought. The British Government was
forced by their agitation to pass the Indian Councils Act of 1892. Ultimately the maximum
then deemed possible and wise by the government took shape in an Act of 1892, 10 which
increased the number of additional members of the Indian legislature to sixteen, and
permitted the making of regulations under which indirectly election could be introduced,
through the nomination by the governor-general of persons chosen in various ways.

During the period 1861 to 1892 nationalism began to grow in India. Several factors
contributed towards it. The setting up of universities and the spread of education brought the
Indians nearer to one another. The repressive policy of government of India after the Mutiny
created the feelings of hatred against the British Government. The development of press was
another major factor. Portuguese were the first European nations who brought printing press
to India with the first published book in 1557 by the name ‘’Jesuits in Goa’’. In 1664 English
East India company set up its printing press at Bombay. In 1780, first English News paper
was published in India by the name ’Bengal Gazette’ by James Augustus Hickey. The first
censorship on press was imposed by the lord Wellesley in 1799. Licensing regulations were
introduced in 1825. Charles Metcalfe who gave a lot of freedom to press is known as the
liberator of the press. Dadabhai Nairoji published the first Parsi newspaper ‘Rast Goftar’.
Harish Chandra Mukherjee started Hindu patriot and Shishir Kumar Ghosh started ABP.
Paper ‘Som Prakash’ by Ishwar Chandra Vidyasagar was the main paper which criticised the
British policies and angered by the Lytton imposed Vernacular Press Act. The regime of lord
Lytton added to the bitterness. The vernacular press act was indiscriminatory measured and
was rightly condemned as ‘’Gagging Act’’.

The Ilbert Bill controversy also opened the eyes of the Indians that Justice could not be
expected from the English where their own interests involved. The formation of Indian
National Congress was started in 1885. Congress considers the reform and expansion of
imperial and the local legislative councils by the admission of a considerable proportion of
10
55 & 56 Vict., c. 14. Maine favoured discussion in 1868: Life, pp. 362 ff.

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elected members (and the creation of similar councils for the North Western Frontier
Provinces and Oudh and also for Punjab) essential; a d holds that all budgets should be
referred to these councils for consideration, their members being moreover empowered to
intervene the executive in regard to all the branches of the administration. It was also
demanded that the number of members in the council should be subsequently increased. They
also demanded that the members of the councils should be directly be elected by the people.
The elected members of the viceroy’s council were to be elected by the elected members of
the provincial council and the members of the provincial’s council were to be elected by the
members of the Municipal’s councils, district boards, chambers of commerce and
universities.

This act altered the composition of the central legislative council/ imperial legislative council
which earlier had 5 members which got replaced by 6 members in the executive council. But
in the legislative council, not less than 10 and not more than 16 additional members were
added, out of which at least 2/5th would be non-officials, for instance if there were total 16
members then 6 would be officials, 5 nominated, and 5 elected. 11 The concept of the election
was introduced for the first time in India; however, it was an indirect election and never ever
the colonial history of India witnessed Direct election. In the indirect elections, the members
of the viceroy’s council were to be elected by the elected members of the provincial
legislative council and the members of the provincial councils were to be elected by the
members of the Municipal councils, district boards, chambers of commerce and universities.
Though the Act of 1892 enlarged the Legislative Councils, there was great opposition to the
Principle of election being introduced in the councils, Lord cross, the then Secretary of State
said, "It would be unwise to introduce a fundamental change of this description without much
more positive evidence in its favour than was forth coming.” 12 Numbers of provincial
legislative councils were also increased. But these also involved indirect election.

Earlier, the evil of extreme centralization was most obvious in the field of finance. The
revenues from all over the country and from different sources were gathered at the centre and
then distributed by it to the provincial governments. The Central Government exercised
authoritarian control over the smallest details of provincial expenditure. But this system
proved quite wasteful in practice. It was not possible for the Central Government to supervise
the efficient collection of revenues by a provincial government or to keep adequate check
11
Notifications F. 248, 22 I, October 30th 1923.
12
https://shodhganga.inflibnet.ac.in/bitstream/10603/77774/6/06_chapter%202.pdf

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over its expenditure. So addressing this issue, the powers of the central legislative council and
the provincial legislative council were increased who could now express their opinion upon
the financial statement or Budget but could not move resolution and divide the house in case
of any financial question. Now they could ask question on the issue of Public interest by
giving a prior notice of days in advance. With increased powers they could now discuss the
budget without right to vote on it but they could ask no supplementary questions. They could
ask questions on domestic matters with prior permission of governor general. They were also
enabled to ask questions of public interest. The governor general in council was empowered
to make rules of nominations of the members subject to approval of secretary of state. It was
a beginning of an era which gave genesis to decentralisation of power and the principle and
concept of election. It gave entry to many nationalist parliamentarians like Gopal Krishna
Gokhale, Ashutosh Mukherjee, Ras Bihari Bose, S.N Banerjee etc.

Consequences

Though the act can be said to be the first step towards the beginning of the representative
government in India. However, such representation was via only indirect elections and there
was nothing for a common Indian. The system of indirect election prevented the direct
contact between the public and the representatives. In many ways, this act also served as a
reason behind rise of Extremist Nationalism in coming times. Though it gave some control
over the executive but it fell off Indian aspirations and it was criticized by the congress in
future sessions. Councils did not get any substantial control over the budget. Now any
question could be disallowed with no remedy.

The nationalists were totally dissatisfied with the Act of 1892 and declared it to be a hoax.
They demanded a larger share for Indians in the councils as also wider powers for them. In
particular, they demanded Indian control over the public purse and raised the slogan that had
earlier become the national cry of the American people during their War of Independence:
'No taxation without representation.’ By the beginning of the 20th century, the nationalist
leaders advanced further and put forward the claim for Swarajya or self-government within
the British Empire on the model of self-governing colonies like Australia and Canada. This
demand was made from the Congress platform by Gokhale in 1905 and by Dadabhai Naoroji
in 1906.

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II. Bibliography

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The resources used here in for this assignment are as mentioned below:

Books Referred-

 “The Constitution of India, 1950” Bare Act with Short Notes, Universal Law
Publishing, 2016.

 M.P. Jain, “Outlines of Indian Legal and Constitutional History”, Lexis Nexis
Butterworths Wadhwa Nagpur, 7th Edition 2014.

 Arthur Berriedale Keith, “A CONSTITUTIONAL HISTORY OF INDIA” (1600-

1935), METHUEN & CO. LTD. LONDON 36 Essex Street W.C. 1936

 M. P. Singh, ‘Outlines of Indian Legal & Constitutional History’ Universal Law Pub
Co.P.Ltd.-Delhi (English) 8th Edition, 2009

Websites-

• https://shodhganga.inflibnet.ac.in

• www.jstor.org

• www.manupatra.com

• www.ebc-india.com