BLS LLB HISTORY OF COURTS - CHAPTER NO. 3 / PART 2

HISTORY OF COURTS - 
CHAPTER NO. 3 / PART 2
 

The Regulating Act 1773 introduced the process of centralization. The Regulating Act vested in the Governor –General and Council the whole civil and military government of the Calcutta presidency and also the ordering management and government of all territorials’ acquisitions and revenues in the Kingdoms of Bengal, Bihar and Orissa. The presidency of Bombay and Madras were brought under the control and Super intendance of the Governor- General and Council in matter of war and pence. The presidencies of Bombay and Madras could not make any orders for commencing hostilities or declaring war for making any treaty of peace other treaty with any Indian Princes or powers without obtaining the approval or consent of Governor-General and Councils excepts in the case of imminent necessity or in the case of orders received from the court of Directors to commence war to make treaty of peace other treaty.

The Regulating Act empowered to make rules and regulations and issue ordinance for the good government of the settlement of fort William and the Factories sub ordinance made by them were required to be just and reasonable and not repugnant to the laws of England and they were to be of any force after being published and registered with the Supreme Court with the consent. This process of centralization was strengthened by the Charter Act of 1833. The process of centralization presented several difficulties to remedy the difficulties arising out of the centralization the Indian Council Act 1861 was enacted. This Act started to the process of Decentralization. The object of the Act was to give power to the Governor – General – In – Council of Madras and Bombay to make laws and to establish new council in other provinces.

GOOD FEATURES –

            The Act restored to the Governor – General in Council of Bombay and Madras the power of making laws for their respective territories and authorize the Governor – General – In – Council to established a legislative council for Bengal and also for non-west province and the Punjab. On account of it, it was possible to make laws according to the local needs and conditions.

            Most of the non-officials members chosen for the legislative Council were Indians and this Indians were associated with the legislative functions. This lessened the feeling of distrust prevailing in the Indians.

DEFECTS –

            The power of Governor – General was very wide. His assent to any law was necessary previous sanction also necessary for introductions of certain measures in the council. The non-official members nominated by the Governor – General for the Council were not elected person and thus, they were not representatives of the people. They could not represent the views of the Indian masses. They were generally yes – men of the Governor – General.

            The Indian Council Act was passed by the British Parliament. The following are the main provisions of the Indian Council Act, 1861.

1.    EXECUTIVE COUNCIL –

The Indian Council Act, 1861 reconstituted the Executive Council of the Governor-General. Executive Council should consist of 5 members at least three must belong to the Civil Service and must had at least 10 years’ service in India. The intention of the condition of 10 years’ service in India was that the members must be a barrister or advocate of five year’s standing. The fifth was the Finance Member. The Secretary of State retained the power to appoint the Commander – in-Chief as an extraordinary member.

2.    CENTRAL LEGISLATIVE COUNCIL –

The Legislative Council of the Governor-General was reorganized. The Central Legislative Council consisted of the members of the Governor-General-In-Council and not less than six and not more than twelve members nominated by the Governor-General for two years. Not less than one-half of the members nominated by the Governor-General were to be non-official persons. Judges were no longer to hold seats ex officio in the legislature, but the Governor- General could summon a Judge, if he so Chose.

The new Central Legislative Council could pass laws for the whole if India. The legislative power of the Council extended over all persons whether British or Indian, Foreigner or others, within the Indian dominions of Her Majesty, and over all courts of Justice and over all courts of justice and over all places and things within the said territories, and also over all British subjects within the dominion of Indian States.

The Legislative Council could repeal, alter or amend any law of the British territories and make laws for all persons and all Courts of Justice and for all places and things within those territories. However, several restrictions were imposed on the powers of the Legislative Council. The Legislative Council could not repeal or affect any provisions of the Charter Act of 1833 and the Government of Indian Act, 1858. It could not pass any law affecting the authority of the Parliament or affecting any act enabling the Secretary of State-in-Council to raise money in U.K. for the Government of India or affecting any act punishing mutiny and desertion in Her Majesty’s Indian forces.

The previous sanction of the Governor-General was necessary for the introduction of any measure in the council affecting public debt, or public revenue of India, the religion or religious rites and usages of Crown’s subjects in India, the relation of the Government view, Indian States and military or naval forces and foreign affairs.

The assent of the Governor-General to any law was necessary. The Governor-General had the right to assent, reverse of refuse assent to any measure passed. The Crown through the Secretary of state had the ultimate power to disallow already assented to by the Governor- General.

The Governor –General was, also empowered in cases of emergency to issue personally, ordinance effective for a period of 6 months.

The Governor-General was empowered to make rule for the conduct of business in Legislative Council. In the exercise of this power Lord Canning introduced the portfolio system in India.

Thus the Governor-General headed and completely controlled the legislative authority in British India.

THE PROVINCIAL LEGISLATIVE COUNCILS –

            The Indian Council Act, 1861 conferred to the Governor-In-Council of Bombay and Madras the power of making laws for their respective territories. The Act also gave power to the Governor-General to create a Council for any other province. The previous assent of the Crown to such proclamation was necessary for their validity. The Legislative Council for Bengal was established in 1862. The Legislative Council for North-West Province was established in 1880 and the Legislative Council for Punjab was established in 1897. The Legislative Council established by such proclamation consisted of Lieutant - Governor and certain nominated councilors to make laws for the peace and good government of the territory concerned.

            The Provincial government could not introduced any Bill in the Council without having submitted it to First Government of India and having received its approval. The assent of the Governor-General was again necessary for validating the laws passes by these Provincial Council in addition to the assent of the Governor of the Province, and the Crown could disallow any law.

            By the Indian Councils Act, 1861, the legislative system was founded and adopted in India. Many Scholars consider that “the process of constitutional development began in 1861”

THE INDIAN COUNCILS ACT, 1892 –

            The Indian Council Act, 1861 introduced some reforms. The Indian Council Act, 1861 did not give a right to the Indian to elect their own representatives in the Councils. The non-official members nominated by the Governor-General for the Council were not representatives of the people but were the ‘yes men’ of the Governor-Genral. They could not represent the views of the Indian masses.

            The Indian National congress established in 1885 organized the national political opinion in the country. It gave a clear demand for greater share in the government and administration on its very first session, which also expressed grave dissatisfaction at the system of Government as it existed then. The National congress also demanded extension of their powers not only in legislation but also in financial and administration matters. And the right to discuss the budget and to ask questions. In order to satisfy the demands of the Congress, the Viceroy Lord Dufferin appointed a committee of his council to draw a plan for the enlargement of the Council and also to introduce the elective principle in the formation of the Councils. Though the Secretary of State did not agree with all the recommendations of the Viceroy yet, a bill was introduced in British Parliament which was passed two years later. This act is known as Indian Council Act of 1892.

The Provisions of the Indian Council Act, 1892 –

            The Indian Councils Act, 1892 introduced many changes in the constitutional set up of the Legislative Councils.

1)    The strength of the additional members in the Council to Governor-General was increased and a  provision was made that it shall consist of not less than 10 and not more than 16 members. (i.e, members besides the ex-officio members)

2)    In the Provincial Legislative Council, the number of additional members was increased so that there could be not less than 8 and not more than twenty in Madras and Bombay and not less than 8 and not more than fifteen in the other namely Bengal, North West Provinces and Oudh.

3)    Two – fifth of the additional members were to be non-officials.

4)    The principle of election was adopted but to a limited extent. The non-official members of the Council were to be nominated on the recommendation of institution like the universal chambers of commerce, municipal corporation etc., the world ‘election’ was no used in the proposed adopted was nomination of some members on the recommendation of the certain bodies.

5)    A member after being elected was required to be nominated by the Government. The elected members could sit in the Council only if they were nominated by the Government.

6)    The Members of the Legislative Councils were authorized to discuss annual financial statements but they were not given right to vote on it or divide the house on any matter related to it. They were also authorized to ask questions on matters of public importance at a notice of six days.

For the first time, the System of Election was accepted though it was on nomination basis. The number of members was still small, comparing with this big city. Though the members were allowed to discuss annual financial statements, they were not given right to vote on it and the functions of the members were highly restricted. The Council had no power to amend the bills prepared by the Government. The Act failed to meet the demands of the Indian National Congress.

THE INDIAN COUNCIL ACT,1909 (MINTO-MORLEY REFORMS) –

            The reforms of Indian Council Acts, 1892 did not satisfy the aspirations of the Indian people. The provisions regarding inclusion of non-official members in the Council left little scope for popular representation in the Councils. The rules of elections as laid down in the Act were defective Certain classes got over representation at the cost of other classes which deserved more representation due to their numerical strength.

            As a result of bureaucratic administration and defective policies, the economic conditions of the Indian continued to deteriorate which generated general unrest among them against the government. In his anxiety to maintain law and order, Lord Curzon adopted repressive measures which further added to be angry with the government. This incident fanned the flame of nationalist movement in India. This also resulted in the Swadeshi Movement of 1906.

The moderates proclaimed “Swaraj” as their ultimate goal of fight for freedom.

            Many paper and journals such as Kesari, Maratha, etc. raised the national awakening in the country. The people began to demand more and more reforms. Indians faced many calamities including famine, plague and cholera between 1892 and 1909. The people felt that the government did nothing to save their lives. Further the also strongly believed that the Government was responsible for their poverty and unemployment.

            Lord Minto came to India as a Governor-General in November, 1905. Jhon Morely become the Secretary of State in December, 1905. Mr. Gokhale, the leader of moderate section of congress went to England and met Lord John Morley and convinced him of the urgency of the constitutional reform.

            A committee was appointed by Lord Minto, the Viceroy of India to enquire into the matter of legislative reforms. The committee submitted its report to the Viceroy in October 1906. The report was discussed in the Council and thereafter it was forwarded to Lord Morley, the Secretary of State for India. A bill was prepared on the basis of the report of the Committee and negotiations between Lord Morley and Lord Minto. In 1909, the British Parliament passes the Indian Councils Act, 1909. It is known as Minto –Morely Reforms. It came into operation from 1.1.1910.

Salient Provisions of the Indian Council Act, 1909 –

1.    Change in England –

The Minto-Morley reforms introduced changes in the administration in England. The overall responsibility and supremacy of the Secretary of State continued. He was responsible to the Parliament for a good government in India. Two Indians were appointed as members of the Indian Council in 1909. They were K.G. Gupta and Syed Hussain Bilgrami. It continued to be consultive body only.

2.    Change in India –

a)    Composition of Central Legislative Council –

The number of members of the Central Legislative Council was increased from 16 to 69. Among them 9 were Governor – General’s Executive Council (ex officio members) and 60 were additional members of the Central Legislature.

      Out of 69 members, 37 were officials and 32 were non-officials. The official members were nominated by the Governor – General in Council. Out of 32 non-officials 5 were nominated by the Governor – General and 27 were elected. The Governor – General’s Legislative Council was still to be dominated by the official majority.

b)   Composition of Provincial Executive Councils –

The Provincial Executive Councils of Madras and Bombay were enlarged from three to four members. Executive Councils were set up in Bengal, Bihar and Orissa. Under the provisions of the Acts, Indians also be appointed as Executive Councilors.

c)    Composition of Provincial Legislative Council –

The numbers to the Provincial Legislative Councils was also increases. However, the actual strength differed from province to province ( for example Madras had 47 members, Bombay and Bengal had 50 members and Punjab had 25 members ). The Act provided that in all the Provincial Legislative Council officials majority should be dispensed with. In Madras out of 47 members 21 were officials and 26 were non-officials. Of 21 officials 4 were ex-officio members of Governor Council and 17 were nominated. Of 26 non-officials 4 were ex-officio members of Governor’s Council and 17 were nominated. Of 26 non-officials, 5 were nominated and rest elected.

d)   Appointment of Indians to the Executive Councils –

The Act provided for the appointment of Indians to the Executive Councils. Two Indians were appointed to the India’s Council. One Indian was appointed to the Viceroy’s Executive Council. Indians were appointed to the Provincial Executive Councils.

e)    Introduction of Communal Representations –

It was the most unfortunate aspect of the Act, 199 that it provided representation in the Councils on Communal basis. The Act favored the Muslims by giving them the right of proportionate representation.

f)     Vice – Presidents –

The Indian Council Act, 1909 empowered the Governor-General, the Governors of presidencies and Lieutenants Governors having Executive Council to appoint Vice – Presidents. The Vice – Presidents were to Act for the Governor – General, Governors and Lieutenant Governor and also to preside over the meeting of the Executive Council in their absence.

g)   Functions of the Legislative Council –

Before the Act of 1909, the Councils were merely advisory bodies. The Indian Council Act, 1909 authorized the members to discuss the budget to propose resolutions on it and relating to loans to local bodies, additional grants and new tax proposals. They could move resolutions on the budget and on any matter of public interest except, customs defense, foreign affairs and native states. The effect of such resolutions was merely recommendatory, and the Government could give effect to a resolution as it deemed fir. In the area of legislation, their power was limited as legislation by then was subject to veto by the Governor-General and Governors.

Merits –

1)    The size of all the Legislative Council was increased.

2)    The non-official majority was provided in the Provincial Council.

3)    Indians were made eligible for the appointment to the Executive Councils.

4)    For the first time, the Act conceded both in the theory as well as in practice, the principle of election, as demanded by the Congress.

5)    It also provided ample opportunities to the Indian politicians and officials for good training in the art of Government.

6)    The size and powers of the Councils were substantially increased.

Criticism –

1)    The reforms as introduced by the Act gave a severe blow to the national solidarity by providing separate representation to different classes of persons. The Act made provision for separate communal electorate for Muslims.

2)    The Act provided indirect elections. Narrow franchise and official majority of members in the imperial council.

3)    The act failed to establish responsible government.

4)    The Legislative Council had no control over the executives and the real power remained with the executives only.